tv Capitol Hill Hearings CSPAN September 12, 2013 9:00pm-1:01am EDT
>> we continue on next washington journal. syria as well as congressional battles over funding the government and attempts to repeal health care law. washington journal is live everyday day at 7:00 a.m. eastern on c-span area -- c- span. >> yes, the world is changing. event can't control every , but america remains the one indispensable nation in world affairs and as long as i am president, i intend to keep it that way. >> when the president is talking about the indispensable nation, what he doesn't want us to talk is, we don't know how to
win wars. the best military in the world. we certainly spend more on our military than basically the rest of the world put together. but we don't know how to win wars. it seems to me that there ought to be a very serious national conversation as to why that is the case. where is the fault was to mark -- fault? is it our politicians? is it the size of the forces? or is it the fact that by its very nature, war is unpredictable? to go to war is to roll the dice. you might when and you might not. >> more with retired army vich sundayrew bace night at 8:00 on c-span's q and a. now, house intelligence
committee chairman mike rogers and ranking democratic member ruppersberger talk about cybersecurity. the intelligence and national security alliance hosted this conference. >> good morning, everyone. welcome to the inaugural insa summit. our mission is to serve as a catalyst for public, private and academic partnerships in order to identify, develop, and promote solutions to the national security challenges confronting the intelligence community. i think we can all agree we have achieved the first part of the mission at the summit.
we have been able to assemble an audience of more than 500 professionals from across the public, private and academic sectors. list ofas an impressive more than 40 panelists and moderators from those same sectors. i want to thank you all for being with us today. i want to extend a special thank sponsors, andour particular i would like to ,ecognize our to host sponsors for their efforts. i would also like to thank manteca for sponsoring the breakfast. deloitte for sponsoring the for sponsoringwc our speakers lounge, pa systems
for sponsoring our lunch, and social intelligence and eagle ray for sponsoring the morning and afternoon coffee breaks. without your support, we would not be able to put on events such as this one today. i would also like to thank the immediate partner, defense one. would you please join me in a round of applause for the sponsors. [applause] we have a full agenda today. we have over 40 panelists participating over eight breakout sessions. each on a topic of critical importance to the intelligence community. we have four key intelligence community leaders. in the persons of chairman mike rogers.
ranking member dutch ruppersberger. dni james clapper who will be with us later. and mike flynn. all of whom will share their vision for the future of our community and mission. i encourage each of you to visit the innovation forum throughout the day where companies doing great work within the community will be showing innovative solutions and services. we have wrought these key leaders together to facilitate the conversation, but it is through your participation and insight that progress will be made today at the summit. when you registered each of you received copies of two white papers. we are proud to roll out that this morning.
each will be a topic of discussion of breakout sessions later today. the first, operational levels of seeksintelligence 628 -- to explore cyber intelligence with a frame of reference in the form of operational levels. going to go i am back and analyze that sentence later today. [laughter] the paper reviews have methods for proactive cyber operations, including intelligent and dynamic defenses to combat actual threats by adversaries. the second, a preliminary examination of insider threat is an u.s. private sector initial review of practices for
cyber threat programs. i think you will find the paper conclusion very interesting. i would like to thank the volunteer members and councils and task force. your time and efforts have resulted in the ideas and white papers that provided the momentum for this and other insa policy focused events. no surprise we have received a large amount of interest in the media. i would like to thank all of them for attending today. we believe the american public should be well-informed about the challenges we face and the solutions that will be discussed here today. with that being said, let me talk about bus before he introduced the panel.
the events in syria is the whole issue surrounding wmd instability and sub-sahara africa is a poignant reminder, especially as america's military posture lowers the profile around the world, as it has been doing. intelligence becomes that much more critical to the national security of the united states. that is another reason i believe it is a very timely conference indeed, and i know we all look forward to the insights of the panelists this morning. so with that said, i would like
to introduce the first session of the day. the view from the hill featuring congressman mike rogers, chairman of the house permanent select committee and dutch ruppersberger, ranking member of the house permanent select committee on intelligence. moderating the discussion is fran townsend, cnn national security analyst and executive vice president of macandrews and forbes holdings, and she was my predecessor of chairperson of insa until last december. prior to that, she served her nation and many high-profile positions. much of the groundwork originated from her time as chairwoman and today's success
is in large measure owed to her. with those initial remarks, please join me in welcoming the members of our panel this morning. thank you. [applause] >> thank you very much for the kind introduction. after having served three years as chairwoman, i am very proud and glad to be here. most of you who know me, i am a stickler for time. i will skip introductions. you know who the chairman of the house intelligence committee is, mike rogers. former fbi agent dutch ruppersberger.
both have a long experience in the intelligence community. i will turn it over to them to make brief remarks. there is a lot to try to cover. i have my twitter feed open. we will take questions from the audience. there has been news that has broken overnight, which has become typical in the world of intelligence. why don't we start with you, congressman rogers. >> i will not talk long. eager to get to the questions. there are significant challenges around the world. a lot of things that keep dutch and i up at night, but if you go around the world quickly and rapid changes, some things get a lot of attention and some not at all. you see north korea re-engaging in uranium enrichment. a country that just a few months ago threatened a nuclear
exchange with the united states of america has very large stockpiles. you have the russian military starting to reinvest in technology. it launched pretty sophisticated submarines in the past year or so. vladimir putin is eager to get back into the game of influence around the world as you have seen unfold. i do not know if you read his editorial. good to get lectured by the guy that invaded a country not too long ago. thank you. look at where the chinese are going. cyber espionage is breathtaking is getting worse. cyber planning is now a part of the framework of every major nation state. unfortunately some that are not
major nationstates are engaged in cyber military planning and using technology he around the world. interesting things time has done ,- china has done recently under the radar, they have announced that oil platforms are now strategic assets and they will defend them militarily. this changes the dynamic in the discussions of the south china sea significantly. you see that tension with china and japan got one notch hotter recently. what that means in their mind is they did not want the u.s. navy to be sailing in the south china sea. this is a new wrinkle we will have to work through.
they have named financial institutions all the way down as a strategic asset in china. that has business implications and security implications. not to mention, al qaeda on the rise. clearly we see what is a huge destabilizing and growing more destabilizing event in syria. many colleges civil war. i think that is not accurate. i think this is a proxy war. if we look at it as a civil war, we will make a lot of mistakes. those are just a couple of the things we worry about at night. there is more and that in the fact that we are working aggressively to dismantle the national security agency that provides us information we need to keep america safe. mind-boggling to me. hopefully we will get a chance to talk about that as well.
with that, i will turn it over to my friend, dutch. >> thank you. great to see everyone coming together to talk about issues that are so important. i believe strongly intelligence is the best way to protect against attacks. they're smart, focused and have taken an oath to maintain the confidentiality of information. i guess snowden did not get that. who knows. for years, the committee was not doing the job they needed to do. there was a lot of partisan politics.
when mike and i took leadership we decided we're going to work together as a team look at what we have done. all good fbi agents must listen to the prosecutor in that we are -- even if they are in the minority. mike and i disagree on things. we have always come to a resolution. a lot of it has to do with respect, relationships, and trust. we have a lot of issues that we are dealing with. i'm sorry evolving. we are very concerned about the -- things are evolving. we are very concerned about the cyber issue. mike and i pulled together to decide we had to do something about the cyber attacks. we brought in all different groups.
we brought the white house, business community to try to find a way to deal with cyber. cyber command estimated in the past three years we have lost $400 billion from trade secrets and information to mostly china, but other countries. you know the issue of terrorism and how serious it is. it will go beyond our lifetime i am sure. we have to continue to use the best tools. do it legally and for these -- find these individuals. i call it needles in the haystack. we have to find them. we have to make sure we stop them before they attack us. the highest priority in the united states. secondly, allies. very important issue. you have the china/russia threat. the cyber attacks. these are things evolving. i can go on and on. i think it is better if i stop
talking and listen to you all. >> thank you both. with your permission, i will call you by your first name. let's start with the news of the day for many refer to it as a proxy war. i call syria, the vietnam of the 21st-century. you have big regional players like russia and iran playing out a larger political game at the expense of the syrian people. talk to us, both of you, about the likelihood the russian proposal goes anywhere. do you believe there will be a credible plan, and can there be any plan without the threat of military force? >> clearly the russians --
first, let's try to understand the problem. russians have been on the ground since the beginning. they have long-term contracts there. they really need the warm water partner. so they have a strategic, military strategic interest in keeping the footprint in syria, so we should try to eliminate critical quickly some benevolent interest in being the peacemaker in the region. they are concerned about losing a strategic asset. that is the number one primary concern. they have been on the ground providing advisors, intelligence packages, and it is in the interest that first people who might show up, i think the russians want to be the first ones through the door. i imagine there is writing in there that might cause them concern.
the problem with syria now, it can work, but interests have to align. we have to push the interest to align. i believe you need a credible military threat in order to continue to have negotiation success. which is why the russians said they would not allow that to happen in the united nations. take out chapter seven, which would allow a united nations military threat if we could not get a handle on the coming call weapons. they got exactly what they wanted on day one, which was time. they needed president assad to have more time. it allows them to continue to supply arms, financing, and other things, and it sends a pretty dangerous message to the
opposition that he will be there for a length of time. i am skeptical. i hope it works. i just do not think it will work if we do not have credible threats to say this negotiation does not go well, we have a whole other set of options and you will not like any of them. i worry that without that it becomes a game of taking four months to decide when to meet and who gets to meet and six months to decide who gets to go into syria. i do not think that is helpful to what is happening on the ground. >> do you agree there needs to be a credible threat of military force? >> without a doubt. look at the history when all of this started. when the opposition was starting to gain the momentum, that is when russia basically wanted us to come to the table.
why did russia do this? putin will only do what is good for putin and then russia. they know they are on the wrong side of the issue am especially when it comes to chemical weapons. when hezbollah got in the game, things changed. we decided to be the quarterback that helped the opposition and the other allies to help them somehow change the tide. the whole goal then was to get russia back to the table. when you are in the position where you know where we are, i think the president made the right decision, because the only leverage we have now was the players that are there. assad killed 100,000 of his people. women and children. i have met with him.
he is a low key ophthalmologist trained in great britain. i think his father's people in iran are pulling all of the strings. we have to verify, trust to verify. if this is a stalling tactic, then we have to continue on with the threat of force or nothing will happen. we have to verify with the people that will go to the country. >> last night, while most of us were sleeping, the guardian published the most recent document from edward snowden. it raises a whole bunch of issues about leaks. this report alleges that the united states is passing u.s.
data to israel. we have seen an ongoing public debate in this country. this will only fuel it. how do we get the american people comfortable and supportive of what the intelligence community really needs to be able to accomplish? >> great question. look at the time. [laughter] the first thing, there is always i believe a negative into a positive. there is no question that this debate of privacy has to be out there. the things we are dealing with
with cyber laws in those types of issues. it is really difficult to let the public know a lot of what is going on because it is classified. we will move forward not only with the public, but other members of congress. we will have to somehow change laws to be more flexible on the issue of what we are going to do and how we are going to deal with classified information. these are dedicated people who get up every morning and work hard. they are getting hit pretty hard. we in politics we have to deal with the issue of perception, even though it is not reality. we have been working with general alexander and other people to try to find ways that we can get out more information to educate the people.
the people are concerned. eventually there could be unintended consequences that might affect the national security. i will say something now that my staff will be very upset with, but i think it is important to raise this issue. this is about the media. i want to make it really clear. i believe the first amendment is one of the most important things that we have. we have to stand behind. we have to support the media ability to write and raise issues. i do not have a problem with this debate and printing the issues that are out there, but what i do think, the media itself needs to come together to see how far we go when we're getting beyond the debate of privacy and more on printing sources and methods that will
eventually cause death to americans. it is a very sensitive issue. i am just throwing it out there. i will not be there, because i do not think we should. i think when you get to the point of article after article talking about sources and methods and will not be able to find where they are, how they are going to protect us. i just throw that out there. we're not doing anything about it -- i remember when i was a prosecutor, on the intelligence committee, you would never see information of al qaeda giving groups data on what we are trying to do to protect us. what is intelligence all about? what are the millions of dollars we spend? it is about trying to protect us.
we have to have the laws. we have more checks and balances than any other country in the world on what we do. believe me, mike and i make sure they follow the law and is constitutional. if something is wrong, we will try to fix it. i better stop there. do not give me a hard time. >> this has been the most frustrating series of weeks. candidly, the damage is growing by the day. it has nothing to do with privacy issues, nothing. they are providing adversaries valuable information. by the way, we have already see one al qaeda affiliate completely change the way it does business, which means we now have a gap and the ability to try to stop something bad from happening.
it has been described by senior intelligence officials as significant and irreversible. we think it is fun to put this in the newspaper, and i feel irresponsibly on some of these issues. we have a gap. what is frustrating to us is our job was to find ways to close the gap in ways we knew existed prior to 9/11. some of these programs fill the gap. those gaps are back. if we think for one minute that people did not perceive that when there is a gap they will not take advantage of it, we're absolutely fooling ourselves. all qaeda is on the rise. matter of fact, it has become the largest single source of financing for the core al qaeda leadership through kidnappings, ransoms. yousing us
great concern. destabilization efforts underway. you also have new affiliates that are growing in interest in external operations, meaning u.s. targets or western targets along the pakistani/afghan border. new safe havens developing as the troops drawdown happens in the northeast. you see al qaeda talking about safe havens in syria. along the iraq/syrian border. we are to put in context about what we are disclosing. secondly, the reports that get leaked are reported as they have found them doing something wrong. we have found this horrible thing that no one knows about and we are printing it. part of what edward snowden
stole was slide decks that described what was wrong and what the mitigation process was, which means we knew about it. these are management tools to fix problems we have found in the system. that means the court has found some. the intelligence committee found some. we used such specific language in describing the events, every time it came out people set that is a privacy violation. it says it is a violation. absolutely wrong. they were not privacy violations. some of them were technical. i use the word violation and that is even wrong. it is just the technology changes. everyone knows about internet protocol. when something changes, there will be a glitch in the system to catch up. those are listed in there. the newspaper says let's describe this as a privacy
violation. most of those -- you get my blood pressure up on this. americans should be mad about this for all the wrong reasons they are mad about it now. most of the violations that were reported was because there was lawful intercept of bad guys overseas. legitimately identified, reasonable suspicion, all of that found. in the modern day you really do not know where that person is with the particular device at any time. you can be a u.s. person for a temporary amount of time being somewhere else by using u.s. networks. that is a confusing thing for a guy trying to catch a bad guy. we also legal implications. we put a lot of pressure to make sure they do it right.
we are the only intelligence service in the world that does it the way we do. i guarantee you putin is not having this conversation. so here is the thing. they get on the phone. the guy goes from pakistan to afghanistan to dubai, catches a flight to new york city. if we know this is a bad guy doing bad things, trying to figure out what is that person up to. the person makes a phone call. we have to turn it off and try to find another system by handing it over to the fbi. that is considered a violation.
i do not think we ought to turn it off. that is what the law is. our job is to make sure that law is followed. we are working against ourselves every day. when the newspaper picks it up, they are calling these violations. doesn't it sound like a horrible thing these people must be doing about violating someone's privacy in the united states? that is what people believe and we are working against ourselves we will have an outcry against the law. the court challenges them frequently. what you saw was the court working on technical corrections. you want that to happen. it shows you that oversight works. instead, it is being portrayed
as an agency out of control doing horrible things. it is costing us significantly in the ability to collect against our adversaries, and they know it. there is a reason putin decided to put an op-ed in the new york times. he knows america is on a feeding frenzy against itself, and he would love to join in on the game. so when you hear it, i will
ask you all to be skeptical. the notion the agency is collecting on u.s. persons and giving it to any foreign intelligence agency in the way it was described is completely wrong. that is not what has happened. i can guarantee you the privacy of americans are protected in the way we operate. part of the problem was we were too aggressive in the oversight, and we documented it and talk about it with leadership in order to fix it. they stole the slide deck and put it out there and said we caught them doing something horribly wrong and should dismantle the national security agency. i am really worried about where
we are going in the growing sense of isolationism is concerning. if we do not start getting it right, we're going to be in a lot of trouble when it comes to providing intelligence services the tools that they need to protect this country. all worked up about that. >> just getting the facts right. [applause] >> we get criticized for giving the facts. we oversee the intelligence community. we make sure they follow the law, but they also have to put the facts on the table. when you get the allegations like the
metadata program, that is not the case, but we have to deal with the perception. some of the things we're doing, we are trying to make sure we can declassify more information
so that we get people more information so they know we are always following the law but also trying to protect the american people. the head of al
qaeda they will start targeting more in the united states and allies. believe me, we are more all vulnerable because of the leaks. we will lose lives because of these leaks and where we're going. we have a lot to do. we ask you all to be there with us. we have a lot more to do to communicate with the american public. >> you raised frankly what my next question was. yesterday was the 12th anniversary of the horrific attack on september 11. nypd police commissioner ray
kelly gave a series of interviews, one of which was on cnn, where he said he believed the threat to the homeland from al qaeda is as great, if not greater than previous to 9/11. you can imagine from my perspective, that got my attention. what do you perceive as the greatest threat? >> what is concerning is in the past, they were very eager to have big events and would take a long time to plan the big, impactful events. unfortunately they learned a lot from the boston bombing. now you see a change in attitude. with the changing of the guard and leadership.
you can see a change in the kind of things they are doing with targeting. now the definition of what they think might be a successful attack has changed. that is very concerning to us. again, our concern is are we engaged fully in all the counterterrorism programs that we know were impact full disruption in the leadership. we have had some changes. public debate. they are not pulling back. what are your finding is, you think about what is happening in area. -- in syria. there are over 10,000 members ascribed to al qaeda operating
in the eastern part of syria, coming from all over the world, including the united dates of america. you have folks with european papers, american papers that are trained. they have been further radicalized. whatever it looks like, they are going home. al qaeda knows who they are. they know they are a new avenue. i think when the commissioner is talking about, a dynamic threat change, you do not have to look at the big event of flying a plane into a building, but we have to now worry about the smaller knockoff events. i am equally concerned and i
think the threat is greater in that regard. >> i agree with mike. the real concern is al qaeda realized we are very sophisticated in the allies in being able to find major attacks. so they are attempting more out of yemen than any other area, focusing on the united states and having individuals under the radar. not doing things where we can pick things up. that is why it is so important for the intelligence community to work with state and local, a team approach -- getting as much information as you can. this is what i am concerned about. we had a couple of those attempts. we were lucky they did not occur. now you cannot misjudge how many people are helping al qaeda and funding them. we have some very smart people that are part of the
organization. doctors that are trying to research and putting plastic bombs in individuals that they can go through the airport and not be detected. this is very serious. we have been talking about syria and terrorism, but do not lose sight of the cyber attacks and how serious this is for our country. it has been alleged or the media reported that iran knocked out the largest oil company for saudi arabia, knocked out 30,000 computers. when russia went to attack georgia, they shut down the communication systems. this is very serious and really concerns me. people say you are members of the gang of eight. what keeps you up at night? i say spicy food, and chemical weapons and cyber attacks.
we have a long way to go. we work very hard. we got a bill passed. the president was against the bill but still able to get bipartisan support to get the cyber bill passed. i talk about giving mike credit. we had a bill passed the session before that that did not have as many votes. i said we have to get the white house behind us in deal with perception of change. mike did not like it, but new the endgame was getting the bill passed. a lot of people on my side of the aisle were focused on the issue of privacy. we got the bill passed and over in the senate. still not going anywhere but trying to work on that. let's not lose sight on that issue. it is there.
it is not going away and i wouldn't be surprised if something like iran was attempting to attack us right now, whether it is wall street or anything they can do to disrupt. >> i will start taking questions from the audience and from twitter. let's stick with cyber for a moment. there is this group called the syrian electronic army. there are allegations that they are trained and backed by iran. what is the policy and legal framework in which we can either oreat, the terror -- deter offensively go back at them? what will it take to get legislation through the senate so we have legislation in this country? >> the snowden thing was unfortunate because of the perception it created around all of this. it is shocking. just how wrong 90% of it is.
ability -- it slowed it down. it is not done. you cannot look at the threat matrix on cyber in this country. any member that went through it, one of the numbers -- reasons so many members joined in was because of the sheer volume and level of sophistication and growing danger of the cyber threats. there are public reports that he is is already -- iran already attacking our financial institutions. they are probing, looking for weaknesses in our system. they believe that they have the right to attack us in cyber. that threat is growing. army israel. we believe that it has more than just iran providing advice and counsel on how that might look.
they are not going to be bashful about doing it. i don't think our policies are exactly right yet. our defensive capability is a problem here. most governments run the internet. in america, is it -- it is a private sector as it should be. here is the problem. if we go over with an offense of strike, they will not necessarily come back with government strikes. they will most likely go for the private sector. there is still huge vulnerability in our private sector system. , weout some opportunity think we have found that way by sharing in real time threat source code information -- and it has to be in real-time -- that we can at least give our
private sector the ability to protect themselves from what might be coming. that is our disadvantage and that is why this is no important we get right. it is so frustrating that with the largest single threat we know exist and is happening today, we are doing nothing about it. that is troublesome. we are going to continue talking. we have had conversations with the senate. they haven't given up on it. we think that we will make a few changes and hope only -- hopefully by the end of this year get a bill sent to the president's desk. that is our hope and goal. >> we have to educate the american public. 80% of the network in the united states is controlled by the private sector. the private sector has to be very much involved in the partnership with the intelligence community and government to make sure we get the proper protocols in to protect us. we also have to deal with the issue of privacy. mike and i were both in law
enforcement. we know that you must follow the law. we brought the aclu and other groups to the table. we thought in light touch -- in light of changes, we still have some pushback. we have more work to do. it is one of the most serious threats we do with. we have a law that says basically, we cannot give classified information to the other side. that is why right now, our intelligence community can't communicate -- all of these attacks coming in unless there is some type of classified program that is there. we are trying to change this and make sure that we can go back and forth. it is all voluntary and we are not violating privacy. please help us. the business community has really stood up and made a lot of concessions to try to get the
bill passed because they know how serious it is. $400 million. we have to not only deal with the cyber issue in the united it, but we have to get china to work with us. it is going to be a global issue , global standards as we relate to cyber if we want to protect ourselves. >> you're going to be happy for the next one. twitter, yesterday was also the one-year anniversary of the tragic attack on benghazi. question, when are the american people going to hear from those people who were at the benghazi conflict? >> hear from the employees?
>> the people who were there on the ground. >> we have in our committee, we are doing the intelligence of that investigation. hearing.ad our 10th we have talked to all but three on the ground. we are still working through those issues. for those who are looking for some -- we tracked down every lead that we heard. every story that you read in the newspaper about something that, we run all of those to the ground there really with our investigators. -- thoroughly with our investigators. now, we have got it narrowed down, that there are some indicating that the time frames that their headquarters is giving might be different than the timeframe that the folks on
the ground are giving. we are trying to reconcile that. we need to do this in a classified setting because folks are still employed. most of them are still under cover. they are great patriots. they went through a pretty difficult circumstance and dusted themselves off and redeployed around the world. our goal here is not to disrupt their ability to continue to protect america and do this investigation in a way that treats those folks who are patriots with the respect they deserve. we are working. these things always take longer than you think they do. i think the state department is where you will get the first set of more public hearings on the investigation from the lower and as it works up through the senior ranks. those are where the decisions were made. those decisions were made -- i saw an article the other day
that the agency was supposed to vet the security services. i can tell you that in our investigation, let me just put it this way, the agency wouldn't hire the people that they hired. not go locateld on the facility because they believed it was not supportable. somebody took that information and made some really dangerous decisions. that is where the problem laws -- was. >> a question for you from the audience. we are going through a series -- a period of sequestration. we remember the gutting of the human intelligence in the 1990's. what do you see as the impact of
sequestration on the intelligence community and what is the committee in its oversight role going to do to protect the capability and not prevent loss? >> to begin with, sequestration is a slow burn. it makes us weaker as a country. a lot of what we do and intelligence -- we have satellites, equipment, resources , but it is about people. what we are trying to do right amendmentand i had an and we are attempting to work with is leadership on the issue of sequestration to say as it related to the intelligence justnity, that this cut is disastrous. budgeting is about priority. budgeting is about picking priorities. there are some programs that you might like but you can't afford. would you can do, you do at 100%. what we tried to do was get them and get thatwaiver
will not beat we negatively impacted. as it turned out, we couldn't get it past. it is a serious issue. enough is enough. there is no question that we have to deal with the deficit. what we have to do is leadership has to get together. togetherey are getting today. the message is out. we have to deal with the death as it, but let's do it the right way. -- deficit, but let's do it the right way. speaker boehner is trying to resolve it, but at this point he can't get the votes. by the way, the debt ceiling is that we have authorized. to use that as leverage, can't be done. with all the issues out there, , all the qaeda, china
things we are dealing with as a country, i would think this might help bring us together. i have a very unique relationship. we are the only bipartisan committee on the hill. people know it on both sides of the aisle. we are out there. we are able to cut a billon dollars. the way we did it, we looked at , we haveram and said to cut like everyone else. but that's negotiated. it.et's negotiate we are ok for this year, but the next round, if this continues, we will be in deep trouble. we will be weaker as a nation. let's not forget about education. medical issues and those type of things also. >> last question, this is an obvious question -- audience
question two mike rogers. feasible to be able to get them under international control? also, can you do that without u.s. boots on the ground? decisions 24 months ago look a lot better. they looked less better 18 months ago. they look pretty awful today. too think that you are going -- here is the problem. it depends on how aggressive the russians are in helping. hezbollah is there in fairly significant numbers. they also want to get their hands on these chemical weapons. we do think there is going to be some dispersal of the chemical weapons. i do think that you can get a good percentage of them because the assad regime is also worried that if these things fall into the wrong hands they will be
used against his regime. aligned ands have trying to secure these stockpiles. i think it can happen. gas.n get rid of sarin in the old days, it was much more collocated. technology, you can do a lot of destruction in a short the word of time -- short period of time. i think it can happen. i don't think we need u.s. boots on the ground. here is one option left on the table. that and i travel there frequently. -- dutch and i travel there frequently. they are frustrated but willing to provide the support that we would need including troops to go in and help secure those weapons systems because they know how dangerous it is if it
proliferates. we have lots of really good options to bring in our arab league partners. they do want u.s. leadership at the table. that is important. i hope we take ourselves out of this race and the administration regroups about how we can impact that with a plan that is meaningful. which increases our arab league partners who are evil -- here -- eager to participate. turkey is also interested in participating. i think that is the s way to do it. way to do it. if you are going to go in for a hostile takeover, yes it takes 70,000 people. i don't know anyone on our committee, republican or democrat that has ever talked about the real feasibility or
even the interest in trying to have 70,000 troops. that is not. -- nuts. it is a horrible decision. people who are trying to change the narrative are saying this requires so many troops -- there are lots of other options left. including a surgical strike that could degrade your ability to deliver them. people who are saying that can't be done are not looking at all the facts. , even with the notification -- that is not helpful. if i were assad, i would call those clues. [laughter] we have to get back to just saying we have the ability, we can degrade the system. i do think there is a way forward here. the united states, if we allow
this to happen, i worry about where we are going. i know the north koreans are eager to watch us all on our phase. about a yearwho ago tried to kill the saudi ambassador by blowing up a restaurant with u.s. persons and it and didn't care about collateral damage -- if you don't think that sends a message about where their ahead is at, we better wake ourselves appear. they are eager to cause us harm. some notion that they are not is fooling ourselves. dod had a report recently about 600 u.s. soldier deaths contributed to assistance from iran, some of that through syria. that this is an isolated incident, or that we cannot use limited u.s. is a major i think
mistake as we look forward to what the world is looking like in years. >> two fabulous but servants. we are happy to have you served this nation. [applause] thank you very much. >> thank you for attending the opening session of the summit. >> a form on the supreme court, a senator said the u.s. supreme court justices are not political. different philosophies. the court term begins on october 1.
iswhat you are really seeing this operation of different judicial philosophies at work. different members of the court have different philosophies. they hold them quite deeply. they tend to drive them in a principled way to different answers to the same question. it is easy enough to see that as politics, but, that is really not the right way to think about it. it is well-thought-out philosophy about the law and the constitution and how to apply it. they just do not have the same philosophy. you could say the same thing about the great battles of the overme court in the 1930's the deal they had. different philosophies on how interpret the constitution.
it generates contention and sharp differences, but that does not mean it is politics. >> in earlier times, the court was not just political in the sense of how their political theology is aligned, but they were just actual politicians. ran for president. another former president, taft, pointed to the court. sometimes, the first chief justice resigned to run for governor of new york. that was john j. during the new deal era, justice frankford would continue to advise the administration. toustice remained very close president johnson and would give advice. there were times when the court was even more involved in the actual nuts and bolts of politics. publishing op-ed articles under
pseudonyms to influence policy. oldlways pine for the good days, no matter where we were. i am not certain that it is more political than it has been at other times. -- maybe tom will correct me --sometimes this cous priorsitant to disregard decisions, not because -- i would not call that political. they think they are wrong and they will not be deterred by what the prior court held, whether that was 10 years ago, or 40 years ago. that is why so many of the cases we look at, we talked today about, maybe they will overturn any number of cases or
limit them and change them in some way. different thane in my adult life. >> another perspective is you can think of the court as becoming politicized from the outside. as the country has gotten more harshly divided, the supreme court is tackling these big, momentous issues. the court itself becomes a political football. not like the outcome tend to per trade the majority of the case as political actors. the people who actually study the court carefully follow it agree with don that people are applying consistent philosophies and acting in complete good faith. now from the intelligence and national security conference, we will hear from the director of national intelligence, who ,alks about intelligence leaks
budget cuts, and syria. [applause] >> thank you very much. a very generous introduction. , the first directional -- director of itional intelligence, and think the alliance is in great hands. i would also mention they are all veterans. i think it is appropriate that this summit is being held a day after september 11 and the fact that we have speakers here all across the intelligence enterprise, and we this -- we're discussing how we are getting our mission accomplished together. for my part, there is a lot about how far we have come since 9/11 and all that ensued after
that. it position was created -- like all of you, i remember where i was that day and the day after that. we were in a tough place capabilities had been cut in the 90's. when i served as the director in the early 1990's, we had to read the piece dividend. we essentially reduced the intelligence committee by 22% in the mid-to late 90's. eliminated analytic offices, lost about one third of our analyst's, quarter of our human collectors, almost all of the
satellites then on orbit had passed the end of their design life. we did not have much in the way of tracking our inventory and find our attackers. we were disconnected as a community. we neglected a lot of the basics. ,/11 happened, and we responded as we always do. , we face ae dangerous adversary. we reinvent ourselves. another revolution that has gone on here in my view beneath the feet of the geezers like me is all the young people we have brought on, somewhere in the neighborhood of 55% of the employees today were hired since 9/11. a rather dramatic turnover.
,ntegration, which is a journey not ever and and, i do think it is more of a reality today than it was then. this is something you have to keep working at. done a lot of things to improve and enhance intelligence. the to name one thing, fingertips of the commanders, integrating partners more and more up on the enterprise -- enterprise, and we are working with our partners more and more overseas. we developed capabilities to locate our adversaries to enable us to reach into their sanctuaries, collect, and extract their plans and intent. we found ubl, we have worked to dismantle the infrastructures around them. now we are doing activity-based and view the cross
agency campaign sales. it is all paid off. in the a huge investment intelligence. a lot more capability and people. we could not have done it without our two oversight committees, without their support. you saw an example of that this fromng with the chairman the house intelligence committee. -- could not do all this without them. they are serving as our advocates and champions today with our current challenges, which i will speak to in a moment. now, we are facing, in my view, the most challenging and
diverse amount of threats that i have seen in my 50 years in the intelligence business. i can take off the laundry list of thing gaza re-task, boston marathon bombing, sequestration, middle east unrest, syrian atrocities. .ll to say we responded to 9/11 with all the challenges we have today, we are and will respond to them, as well. we will keep pressing on what i believe is an important attribute of the intelligence community, which is immigration. a muchink we are in better position to understand and react to upcoming threats. even with all of our distractions, to keep that focus on the mission.
we will certainly never forget those who lost in 9/11. it is always the right thing to do to pay tribute to our heroes on that day. firefighters, police officers, and first responders. it is inevitable that with time, the memories of that day will fade somewhat and eventually , -- alsoke december 7, a day we do not forget but do not dwell on quite the way we used to. in the meantime, it is incumbent on all of us to do all we can to prevent tragedies like either of those days. all to say, it is most gather together
on this on the 12th. as we look to the future of the intelligence community, i have learned about the dangers of making predictions about the way ahead, but i do not think we can go wrong if we be -- continue the focus on our mission. i would like to touch briefly on .hree current subjects sequestration, snowden, and syria. toa sense, each lends itself representing a piece of the long-term picture. a couple words on sequestration. we are probably in for it for another year. i found it interesting a lot of people somehow think intelligence was given a pass on sequestration or that we got exempted. .e have not been or will we be
in problem i have run into explaining all of this and explaining impacts, it is not quite like longer lines at the airports or shorter hours at public parks, or air traffic control delays. people can see, feel, and touch and experience that. intelligence, a capability we might produce today, the impacts of that may not be known for some time. kind of insidious. we will know about it when we had a failure. to explain tod people of the impacts are if you cut so many analysts, because it may not have real impact tomorrow. -- andmany of you are very concerned about the magnitude of these cuts and sustaining them over a long time. whatever you think about you will have a
lot less of it to complain about at this rate. in the meantime, something we have been working very hard about -- very hard at, looking across a community to make smart choices. we have to cut, and what is the best place to do that. protect ande should even what is it we should invest in. we have not applied, nor are we now, the everybody is the same rate at the office approach we t in. we have not applied, nor are we now, the everybody is the same rate at the office approach. we are trying to make conscious judgments about what to protect and what not to. above all, the most important that i triedenet to stick to, since i have been in this job, is protection and investing and our most important
resource, our people. so let me move on to snowden. just to make the point, not
a whistleblower. to give any credit for what has happened here, which is egregious, some of the conversations is has generated, some of the debate, is actually -- it probably needed to happen. it is unfortunate it did not happen any time ago heard if there is a good side to this am a that is it. , there is more of this to come. i in my position am very noterned about the impact just on nsa, because this is an issue for the whole
intelligence community. the impact directly on our national security and the damage it has potentially caused by this continuous stream of revelations. some of these were a longer- term doing to attend to this. now, there has been a lot of on insider threat protection. , but we were into probably not with the emphasis of energy that we are now. , anotherspect of this windmill floating at for six or seven years, clearance form, they are near and dear to those of you in the contractor world. we will have to step up the pace on that. , let the number of folks
me back up. foradline was established initial clearances, which we achieved within the five-year schedule we were given. , it was silent, essentially, on what happens after that, on the periodic investigations, a system we use today, every five years. we have way more people out of the scope than we should have. theave got to change system, fix it, take advantage of technology so we are enabled to evaluate people continuously and not just periodically. we are moving ahead that. somethingm, i think ,e started, called "eyesight"
andh we had fully installed operational today, might have detected snowden a lot earlier than we did. what this is about is something we have talked about for years in the intelligence community, which is to have a single enter rise, as opposed to what we charitably call federation, particularly among the disciplines and the agencies manifested in those dips -- disciplines. savingsly, it was driven. to go asked the cfo through the congressional justification books, now very familiar to you, how much of it is i.t.? -- rob banks,out because that is where the money
is, what we are spending on i.t. in the intelligence community is amazing. and so, with the technology, cloud technology that is available to us, i think we sake of savings, efficiency, promoting integration and security, the bumper sticker mantra, in a way that you can label the data and assure yourselves they are the people with whom you will share. both security and sharing. that is the path we are on. a lot of concern about it. well past the euphoria of what a great idea this is an now we are in the passive aggressive resistance staged you are all familiar with. we are very committed to this.
the snowden issue kind of emphasized the importance of doing it. we take a moment about transparency. i think what all of this has shown is we have to be more transparent about how we do our business, what it takes to do it, and also, transparent about the output of what we do. opinions, asing couple days ago, 1800 pages of opinions. the upside is this does refute the allegations someone made that the fisa court is a rubber stamp. it is certainly not. this is something we have to do in this country. we must restore the trust and confidence of the people and their elected representatives. this is one way to do it.
transparency is a double-edged sword. it is great for us and our citizens. but the adversaries go to school on that transparency, two. i am convinced we have to err on the side of more transparency because most important, we will not have any of this if we do andhave the trust confidence of citizens and elected representatives. , fore just say publicly the record, that the national security agency, which i grew up in, and spent the first 15 or 20 years of my intelligence career in business, the nsa is an honorable institution. it is led by honorable leaders. there is a phenomenal workforce who were appalled at what has happened. they are dedicated to conducting the critical mission lawfully. and deserve to be commended
appreciated and commended for their crucial and important work, made now, for them, all the more difficult. we finished up with syria, commentary on that. it has been all syria, all the time. a lot of time on the hill and intense interest on the hill about all of this. is, itary i would make was around in the intelligence community. i was part of the intelligence community when the infamous weapons of mass destruction in october published in 2002. i can attest, i think, to the huge improvements we made to integrity, red teaming, and
things like that that we have done since that milestone publication. , and this gets back to the transparency theme, not only how we do our business, but also the results of that is missed. you may have seen the page on classified case that we put out on what our best assessment of what happened on the 21st of august in syria. it was pretty forthcoming. more classified assessments. it is the sort of thing we in the intelligence community need to do. people have some appreciation for all the investment and what do we get out of it? it was a great example of
integration. if i sound like a broken record, i am sorry. compelling case of melding all the collection disciplines. melding that, by the way, with heavy use of open source. was a great example of integration. let me just conclude by saying whatever part of the to youise -- my thanks on this september 12. i should add i spent six years as a contractor. a contractor taken some hits. i would simply say, for my part,
i was the leader of the intelligence community. contractors continue to serve as a crucial part of the community. we could not do our mission without you and we need you, for those of you who are contractors now, to stick with us and help get us through this difficult time. my thanks to you, as well, for helping the united states intelligence community in our quest not to just to check -- not to just look back, but to look forward. let me stop there. a couple questions. [applause] >> thank you. [indiscernible] time for a few questions. time to listen but i do not know if i can answer them.
>> you mentioned snowden in your presentation. the recent disclosure coming out, what is the balance between -- you spoke of transparency, but also the need for security and the outstanding work done by colleagues to protect the nation, the homeland. educating sufficiently or communicating efficiently? why is there an element of criticism and skepticism in the public about what is going on with revelations coming out of snowden. >> personal history. i have had a lot time to think about this. i mentioned all the cuts we wallafter the fall of the and the soviet union. and the cold war. ways, i wish we had the simple world back. we had two mutually exclusive
telecommunications systems. there is and the west. what has happened because of technology is there essentially one global predications system. -- communication system. everything is in there. billions of variance and things. innocent things. in the midst of that is people doing threading things. what all of this is about, you ,an talk about the patriot act veryisa act, which are complex and complicated, but what it all boils down to is the efforts we attempt to make in good faith to separate away from innocent hay- the from the deaf areas needles, that is what this all boils down to. when youerstandable
read the articles, which go to the deepest and darkest place they can, and make the most conspiratorial case for what the intelligence community is doing in general, and in this case, the nsa pacific league. i have had the occasion to meet with overseers, leaders, before the state, leading publications who will remain nameless. i have found there is a big elf when you speak with them about their definition of what affects and myl security definition of what affects national security is. there is a big gap there. theve come to appreciate huge competition that exists in the media, given the 24-hour news cycle and the pressure on
the media to publish something. all these factors weigh against us. tom finding a real challenge make the alternative case. one of the things we are doing is to try to open up and
be more transparent and explain to people what we are doing. it is very clear that to the extent we keep the tools at all it will be legislatively amended. we can do with more oversight that would give people more confidence in what we are doing. .> thank you let me ask another question. you yesterday mentioned the 12th anniversary of 9/11, the tragic event. are we safer today? >> well, i like to think we are. term. is a relative
as i think back on where the intelligence community was, at andt my part of it, decade or solast and the improvement that a been made, the support the congress has given us, yes. we are a lot safer. one of the things that has happened in the intelligence community that you can ask soon is theassume now development of the foreign and domestic, the participation. i will single out one specific case. there are others. i want to mention the fbi and its dramatic transformation under the magnificent stewardship for 12 years. he stuck to transforming the
intelligence driven national security organization. that is one major aspect of changes that have taken place that lead me to say we are safer. >> you have mentioned safer today, but what keeps you up at night? what are the threats? we heard this morning from chairman rogers and the congressman that there are threats and maybe more threats to the homeland than in the past. >> that is a frequently asked question. answer is always, what i do not know. that is what i worry about the most. the things you know about, even if you do not have complete information, a potential threat, a plot, you can work on it and get more information. it is the things you do not know about, which is the situation we were in prior to 9/11.
that is what i worry about the most. >> created to integrate and bring communities together, the 17 agencies together. we commend you for doing that work on integration. how do you feel on it? all the agencies, together. are we sharing the information necessary? >> as i said, it integration is a journey. we have made a lot of progress. in all honesty, it might have happened anyway. having an institution committed theme and focus is integration makes a big difference. i will also tell you that for 10 more, every year, we got money and more resources. that is not that i hard. now we are in a much different mode. i do think there is merit in having someone who can look over
the entirety of the community about fair and objective what to cut and what to invest in. that, in a necessary way, prove the efficacy of having -- >> can you mentioned the threats -- when you look at the what are the major threats of the homeland? what are the things focused on? >> we do not take our eye off the counterterrorism ball. the largest single investment we make every year. i think what is going on in syria right now is a very graphic example of proliferation. a lot of that is important. clearly, ciber is a growing threat. everyone is very concerned
about the potential for it. we worry about that. apart from the standard concerns, the classical adversaries, iran and north korea, all the turmoil in the which is serving as a magnet for extremist, i think everyone here understands the variety of these threats. thetimes, you kind of miss soviet union. >> yes. you said a lot of times -- you mentioned the threats. ,e are looking at sequestration the impact it will have on the intelligence community, because that has got to be on the forefront. , you seence east asia sequestration cutting into the ability? .> of course it well
when you do not take those kinds of cuts at that magnitude without giving up capabilities. do the math. what this is really all about is identifying, excepting, and managing a risk. we will take higher risk in some areas. we in the intelligence not sugarcoatld that. it is a fact. --t is why secret station sequestration concerns me. theade a lot of decisions first year thinking it would only be one year now we are in the mode of, we cannot do that. we have to make more strategic decisions that will be more lasting. frome in point is cutting acquisition programs. maybe you can get by one year doing that, but you sure cannot sustain it.
risky. very those are the kinds of judgments we have to make now. >> you have been very candid with us. your leadership is outstanding. we thank you for your service to the country. >> thank you. [applause] >> let me focus on advanced persistent threat. it relates to what was being talked about. there are footprints left regarding behaviors that go on out there that are indications of something that will occur. one of the reasons the changes that need to be made have been made and continue to be looked at in the executive order and standards and everything else, is that we need to move to continuous monitoring and then after that, we need to move to continually be able to look at
the context being set for an attack and we know what those are. a lot has to do with analyzing social media. >> you are never going to defeat the cyber enemy, whether organized crime, any organization, by having the private sector check the compliance box. it is inadequate and growth will -- grossly ineffective. there has to be timely and continual information sharing with the federal government and vertically down to state, locals, and the private sector. the federal government relies on the private sector to function. >> this week, the senate homeland security committee looks at where the next homeland threats will come from. .aturday at 10:00 a.m. eastern a secret life hidden from family of friends -- and friends. at 11:00.ight
live sunday on c-span3's american history tv, commemorating the 60th anniversary of the baptist dirt -- church bombing. starting at 11:00 a.m. and throughout the day from birmingham alabama. >> jay carney took questions about meetings on syria between secretary kerry and -- onther related topic thursdays breeding was just meeting was the new york times op-ed from -- written by vladimir putin. >> i wanted to ask you about two issues. on syria, i wonder what the president's reactions were to president putin's op-ed.
>> let me say this. both in his op-ed and in the statements and actions we have seen from president putin and the foreign minister, it is clear president clinton has invested his credibility in transferring of tod's chemical weapons to international control and ultimately destroying them. significant. russia is of tod's patron and protector. the world will note whether russia can follow through on the commitments it has made. as for the editorial, we are not surprised by president clinton's words. -- president putin's words. there is a contract that demonstrates why america is exceptional. unlike russia, the united states stands up for human rights in our own country around the world. we believe it is advanced when -- our global security is advanced when children are not gassed to death by a dictator. it is worth noting russia is
isolated and alone in claiming the opposition for the chemical -- blaming the opposition for the chemical weapons attack on august 21. there is no credible reporting that the opposition has used chemical weapons in syria. we have been joined by 34 countries in declaring the assad regime is responsible for the use of chemical weapons on that night. even iran, fighting on siv's-- on assad's behalf in syria, publicly blamed the assad regime for the attack. in addition to the intelligence pertaining to the preparations for the attack, it is common sense the opposition does not have the capability to have carried out such a large scale targeting. i think it is also worth pointing out there is a great irony in the placement of an op- ed like this. it reflects the truly wonderful tradition not shared by russia.
-- tradition in this country of freedom of expression not shared in russia. that has been on a decrease in the past seven or so years in russia. having said that, the point i made is the most important point. russia, as we saw just now in geneva, has put its prestige and credibility on the line in backing the proposal to have syria, the assad regime, give up chemical weapons that, until two days ago, he claimed to did not have. turn it over to international supervision with the purpose of eventually destroying it.-- them. we are going to work with the russians to see if this diplomatic avenue to solving the problem can bear fruit. that is worthwhile and the right
thing to do. >> you mentioned secretary kerry. these talks he is conducting in geneva are occurring on the same day the reports increased the u.s. military systems to the opposition forces. do those two tracks cancel each other out? is there a chance the additional military support undermines the diplomatic track? >> without confirming specific reports, we have said for quite some time that we have been stepping up our assistance to the syrian military opposition. no question. in june, following credible evidence the assad regime had used chemical weapons against the people, the president had authorized the expansion of --ose systems to the supreme of our assistance to the military council in syria.
the expansion of the systems had been aimed at the effectiveness on the ground. as well as assisting their efforts to defend themselves against a regime that has shown no boundaries in its willingness to kill civilians. it is an important distinction to make, in the wake of the august 21 attacks and our response to them, that the issue of assad's chemical weapons is distinctly problematic and separate from, although it is part of the civil war, it is separate from our policy response to the civil war in syria. that response is built around humanitarian support for the syrian people, us to stand to the opposition, including assistance to the supreme military council, as well as an effort with a broad range of allies and partners including russia to bring about a resolution of the civil war through a political settlement. that is the only way to end the war.
these are distinct tracks. the problem that confronts us by the use of chemical weapons needs to be addressed. we are addressing that. the president has spoken clearly about his views on it. we are exploring diplomatic avenues and opportunities that exist potentially to resolve this by removing from assad's possession chemical weapons. we will continue our policy of supporting opposition in an effort to bring about a political settlement in the syrian conflict. >> jay carney talking about the op-ed by russian president putin in the "new york times." quoting from that --
you can link to that "new york times" op-ed piece on our website and watch all of our programs at our video library. [captions copyright national cable satellite corp. 2013] [captioning performed by national captioning institute] quest coming up, a preview of .he next supreme court term then, john kerry and the russian foreign minister speak on syria. later, house speaker john boehner and nancy pelosi weigh in on negotiations with syria. tomorrow, a discussion on the 2008 financial crisis. , who co-authored the 2010 toancial law, trying prevent another crisis among panelists.
watch live coverage at noon eastern on c-span. using telecommunications technology to advise long- distance health care. on c-span2, the conversation on the challenges and benefits. reform.th live coverage starts at 12:15 eastern. >> c-span, we bring public affairs events from washington directly to you, putting you in the room at congressional hearings, white house events, briefings and conferences, and offering complete gavel-to- gavel coverage of the u.s. house, all as a public service of private industry. we are c-span, created by the industry- cable tv years ago. now, you can watch us in hd. solicitor previews the
supreme court. finance, affirmative action, and presidential authority. smithsonian's associates hosted the two-hour event. >> good afternoon. i almost said good morning. it is afternoon now. aty of you spent the morning the supreme court. a wonderful opportunity. you got to meet megan jones, a programs manager.
and the counselor to the chief justice of the united states. this afternoon, a wonderful panel. i have given you a handout with their bios so we can save a little bit of time. they want to get right to it. i am sure you want to get right to listening to it. before i turn this over to them, can i please ask you to turn off your cell phones if you have them on? you might notice some of the names have changed on the bios. there are schedules attorneys are not always in charge of. still an excellent panel here. just as a follow-up for a lot of you who are supreme court aficionados, we have a justice coming here in january. you might want to look for that in our its catalog. i will turn this over to tom. there andke it from enjoyed the session. thank you all for coming.
>> thank you. also, on behalf of all of the panelists, we really want to thank the smithsonian associates, an amazing organization, for putting on of youogram for those who got to see the building and meet people there. i will do a super brief introduction and then we will turn to the summit. when we do, we will potentially split it into two parts. the first part is getting water. [laughter] we will look backwards and forwards. we do think the best part of this program might be telling you what the supreme court will be thinking about, rather than what has already been done. you have already read about last term the decisions. some are so momentous, the voting rights act, for to back -- affirmative action, that they really do bear spending a few
minutes on. we will talk about that first and then the upcoming term, that will take us about an hour and a half. at 3:15, we will stop and take your questions. if you hold those until then, we will be grateful. we have the great good fortune to have c-span today and we want to make sure everybody out there as well here's your questions. my name is tom goldstein. a lawyer. i run a website about the supreme court. coversight, jeff, who the supreme court and has done so for many years for the wall street journal, and unbelievable reporter. you should go yet his book. a fan -- get his book. aboutastic description how detainees have been handled in the war on terror. the nests -- next suggestion,
an organization you should donate to after you donate to the smithsonian associates. a huge amount of public interest work. a huge amount of work outside the supreme court, as well. , at to allison is don general of the united states. it is our incredible pleasure and good fortune he is able to be with us today. he is responsible for principally representing the united states in the supreme court but has other responsibilities, as well. and unbelievable public servant. only thing worth mentioning is that, while he knows more about the supreme court and what is going on than anyone, he also has the greatest restraint than any of us. we can joke and make things up.
the constitution requires that he ask responsibly. acts responsibly. [laughter] especially on c-span. his expansiveness is because of his very special role. we will start by looking backward and start with same- sex marriage and we will talk about that. >> thank you for the gracious introduction. it is great to be back. on thisterrific time program last year. i look forward to our discussion and your questions at the end. , we thought,ted given the momentous character of the end of terms decisions last june that would -- it would atworth a backward look those. i will talk about the gay marriage cases.
windsor, you remember the basics. the supreme court held that a provision of the defense of marriage act, a statute congress enacted in 1996, was unconstitutional. that barred the federal government from recognizing for any federal law purpose the validity of marriage between persons of the same gender, even if the persons were lawfully married under state law. one significant numbers of states have started recognizing same-sex marriages, the federal law started to pose very serious consequences on lawfully married couples. edith herself, a plaintiff in the case who brought constitutional challenge in the law was unable to be treated for federal income tax purposes. she had to pay a tax that she would not have had to pay if the federal government had recognized her marriage. a lot of other serious things follow from the law. andole range of benefits
privileges. one unusual feature of the case was that the united states was not defending the law. we were arguing it was not constitutional. that is because in 2011, the president and the attorney general made a judgment that the law discriminates against gays and lesbians ought to be sus -- subject to heightens -- heightened scrutiny and the defense of marriage act provision, section three, could not meet the standard. let me stop for a minute and talk about what it means to say something is subject to heightened scrutiny. under the 14th amendment law, it provides that no person shall be denied equal protection under the law. laws treat people unequally all the time for reasons that are legitimate. the law needs a device to decide which kinds of discriminations between people and groups are legitimate, like treating
optometrists different than ophthalmologists, and what things in the law are potentially illegitimate. decided isesident that differences of treatment in the law that are based on sexual orientation ought to be treated presumptively illegitimate under the status of equal protection doctrine because of the characteristic of being a gay or lesbian is an inherent personal characteristic and the discrimination based on that, generally, do not bear any relationship to legitimate governmental objectives. and that you could rely on the political process to ensure no discrimination occurs amongst gays and lesbians. based on that analysis, they decided section three was unconstitutional and ought not be defended by the federal government. so we did not defend it. as a result, the house of representatives stepped in and
its leadership decided that they would hire a lawyer to defend the law. you could go to the supreme court in a somewhat unusual posture. the court in a 5-4 decision concluded the treatment did violate the fundamental constitutional guarantees. justice kennedy's opinion for the majority did not express and adopt the heightened scrutiny argument that we in the united states advocated for. it did focus on the characteristic of the defense of marriage act that the court found particularly troublesome. he viewed it as an expression of animus against gays and lesbians. it was not motivated by legitimate public policy concern. a desire of discriminating for discriminations sake. he struck the law down principally on that basis. there was a fair amount of
discussion and oral argument in the case about whether really the problem with the law was not the discrimination problem so much as a federalism problem. justice kennedy asked quite a gee, is itns saying, not usual for the federal government to decide what is a valid marriage and what is not? that is usually the states. not the federal government. thehe end of the day, opinion for the court did not rely on the federalism ground. an equal protection and fundamental rights kind of analysis. he did use the federalism rationale that federalism red flag.a the opinion that, precisely because the federal government is not very often in the business of deciding what is a
lawful and valid marriage and what is not, the fact that the prior -- federal government in this statute got involved in trying to answer that question and answered it not for any one particular federal program but for every single federal program across the board, from taxation to military service to social security benefits, that was a red flag that raised suspicion about whether there was any legitimate motivation for supporting the law. the other big case in this area was perry. that was a case about california's proposition eight, which was a constitutional amendment passed in california that band marriage between persons of the same gender, subjected to a constitutional challenge under equal protection grounds and fed -- in a federal district court in california and it struck it down. something important procedurally happened during those
proceedings is that the state government of california decided that he believed the law was unconstitutional, the amendment was a violation of federal constitution and they stopped defending it. because they would not defended anymore, the group that was a strong proponent to defend the law. so district court found it unconstitutional and the lawyers to defend the law then took an appeal to the ninth circuit court of appeals where they lost then they took the case to the supreme court and asked for supreme court review. what the supreme court ended up doing was deciding that in that situation the party -- because the state of california had dropped out and this other group had come in that there
wasn't standing to pursue the appeal. standing is a technical legal doctrine, in order to bring a case in federal court there are limits. it has to be a genuine case or controversy for the constitution to allow the supreme court to hear a case. you have to have real opposing parties who actually have a personal concrete stake in what is being fought over in court and that the supreme court held that applies not only when you are at the initial trial, but when you are on appeal as well. if you want to take an appeal from a lower court to a higher court and then to the supreme court, that you have to have that kind of personal stake. and a majority of the court ended up concluding that the proponents of proposition 8 didn't have that kind of personal stake in the law that allowed them to qualify as somebody who has standing and
can pursue the case, that they weren't any different from any other citizen in the state of california, that any citizen might have an interest in seeing a law enforced but that kind of undifferentiated interest is one that isn't enough to get you to come in and pursue a case in court. one interesting thing, the consequence of the court stiding there was no standing was it wouldn't reach the question of whether there say constitutional right to gay marriage and whether prop 8 is unconstitutional. they said we can't hear that case and the court of appeals couldn't hear that case either because it was brought by proponents who didn't have standing. but you had prop 8 declared unconstitutional. so what do you do in that circumstance? and the upshot is that the prop
8 proponents went to california state court and tried to get the district court judgment undone on the theory that this isn't right because you have a district court judgment and couldn't be appealed and yet it's going to have the effect if it's left undisturbed of wiping out prop 8 and making same sex marriage available and lawful in california. california supreme court declined to intervene so as a consequence even though the supreme court didn't reach the merits of the issue proposition 8 is inoperable in california and the opportunity for same sex couples to mayor in california is now available even though the supreme court didn't reach the merits of the case. at is part of what made last term quite a consequential term. >> it may be difficult for you to opine on what comes next because the united states will have to take a position on
them. but in the gay rights cases but i am interested in you guys to think about what it is that windsor, the doma case tells us about what the supreme court will do when it does confront the perry question, that is the foundational question of whether there is a constitutional right to same sex marriage. because it seems that is coming on a rocket ship. i wonder what lessons we might drive from that? >> i have thoughts on that but why doesn't somebody else chime in. >> that is the next questioning because the reasoning of the windsor case leaves one to ask if it's unfair to discriminate between lawfulfully married ouples, same sex couples and other couples why is it lawful
for some states to deny same sex couples the right to depet married any way? i had a precursor question and essentially both the state and federal government did the same thing. the attorney general of california and the governor of california did the same thing that the obama administration did when it came to defending this law. they concluded that the state law under attack was not constitutional. they kept enforcing it but they didn't defend it in court. which is exactly what you did here in washington. maybe you can explain how can the supreme court find that they can reach the t merits when the federal government stops defending a statute it considers unconstitutional but they can't reach the merits when the state of california stops defending a statute or in their case a state constitution review for the exact same
reason. >> the supreme court explained that in its opinion and it's a good question. but there are difference that is allowed one case to go forward with the other not going forward. in california in the prop 8 case, the state stopped defending the statute but also stopped participating in the case. they just the lawyers weren't there, they were just gone. in this case in windsor where the united states was a party to the case, we stopped defending the statute but we didn't stop participating in the case. we stayed until the case and we one reason we did that is because part of the decision that the president and the attorney general made when they decided that they wouldn't defend the statute any longer was they would continue to enforce it until there had been a ruling from the courts that it was unconstitutional. and the reason they did that was because as they expressed in their explanation was because of a belief that in our
system that the judicial branch ought to get the last word on the constitutionality of the law, that ought not be up to the executive branch on its own. and the way for them to get a last word is for them to enforce the law so there are consequences falling on people while the law is still in effect and there is the ospect of a true case or controversy that can be decided. and we were in a different position than prop 8 in that there were concrete consequences that would flow to the federal government if the statute were declared unconstitutional and one of them most obviously was the federal government was fighting with windsor over $300,000 in tax payments. if the statute was upheld then
that $300,000 would stay snt federal treasury and if it was struck down there would be a check go to her. even though they believed the statute was unconstitutional we would suffer an adverse consequence from the statute be struck down. they decided that was enough of a concrete dispute to justify the case going forward and that concrete dispute of similar kind wasn't there in the dal california case. that's the best common sense translation i can give of the supreme court's position. >> not to give any doubt on the supreme court but for the state of california they would have the exact same stake because if there can be same sex married couples many state laws make similar difficult chases based on marital status so the state
of california would have a big stake in whether or not same sex couples can get married. of you go to the few who are interested in whether there will be same sex marriage. do you have any thoughts on what follows? >> i agree with you that case is coming. i think that it will be more controversial to say that states have to recognize same sex marriage than to say that the government doesn't have to honor states choices. i have a hard time seeing how they can write an opinion completely consistent with windsor that doesn't lead to that result that states have to. i am more often than not wrong about how the supreme court will rule.
but it seems to me that that has to be the result and it's possible that if they can come up with some decunks for the next case it won't happen in the next case but it will happen. >> just one word on that from the perspective of the united states. as i described earlier, we took this position as a matter of legal doctrine that heightnd scrutiny ought to apply to law that is discriminate on the basis of sexual orientation. and the court in windsor didn't adopt that rational as the reason to strike down section three of doma. they adopted a different rational. but they didn't reject that rational. the united states participated in the perry case and that sime heightnd scrutiny ought to apply to state law that is discriminate with respect to marriage itself because they reached that standing ruling we've been discussing, they
didn't grapple with that issue one way or another. so i think the most i can say is it remains open to the supreme court to go that heightnd scrutiny route and find that state laws that discriminate, that deny the ability for same sex couples to mayor are a violation of equal protection. it's open to the supreme court to craft a different rational and decide that such laws violate equal protection. but it's also after windsor open the supreme court to decide that this is a principlely a situation in which you would defer to the states. because, as i said, there was that strain of reasoning in the windsor opinion that expressed a lot of deference to the state's opinion about who should be able to get married under state law. i think the case is coming fast. but i do think you look at the
legal options available after the windsor and perry decisions and i think they are all available to the court in the future and i wouldn't predict what is going to happen. >> i think we're looking for a fifth vote on that and it is likely to be justice kennedy. he seemed uncomfortable at the oral argument that he had the case before him. e wasn't quite ready i think to go as far as petitioner windsor wanted him to go. that's why i say it might not come in the next case but it will come. i think it's a matter of when he's ready to get there. but the deference to the states is one way that he may decide that at least for now that the states can do what they want. >> let's turn to keep moving forward to the voting rights act case.
>> most of you have read about the voting rights act case in which the court that he would a provision of the voting rights act was unconstitutional. i'll go through a quick primer of the voting rights act so we're on the same page. it was enacted in 1965 to combat measures used to restrict minority access to the polls. it was a discriminatory measures things like literacy tests and morality affidavits. and as well as to the murder of some voting rights activists in mississippi and attacked by state trooper's on some people marching to the capital in alabama. section two of the act contains a general prohibition against voting practices or procedures that have a discriminatory effect on voting. it's enforceable in federal
court by private litigants or the government and a showing of intent to discriminate is not required. you just have to show it has that effect. section five imposes a preclearance requirement on any change that is certain jurisdictions want to make to their voting practices or procedures. the jurisdictions covered are primarily in the south and with some additional counties and states elsewhere like alaska. so those can effect any change that effects voting without the clearance of the united states attorney general or the federal district court in d.c. which is a three judge court in d.c. the covered jurisdictions are based on a formula set forth in section four of the act. the formula has been changed a bit since the 1960's to add
some requirements but none have been taken away. every so often, although some parts of the act just continue on like section two, every so often section five has to be reauthorized or reenacted by congress. and it is done. so several times most recently in 2006 when congress extended it to 2031, for 25 years. and kept the existing formula for determining which jurisdictions are covered and therefore require preclearance of voting changes. at the both the house and hearings extensive and under took what the chair of the house judiciary committee described as one of the most extensive considerations of any piece of legislation that congress has dealt with in 27 years. it was passed almost
unanimously in both houses. so four years ago, might be five now, the court heard -- accepted a case that challenged the section five preclearance requirementles. the petitioner argued that it was unconstitutional. the court decided that case on a different groupped. it didn't have to reach the constitutional question. but they noted things had changed since the 1960's and congress needed to justify preclearance based on current need. that brings to us shelby county. shelby county alabama is or was until last june a jurisdiction covered by section five so that any changes to voting practices or procedures had to be precleared by the u.s. attorney or u.s. attorney general or district court in d.c. shelby county sued the attorney
general seeking deck la tori judgment, seeking a statement, a pronouncement that the formula under section four and the preclearance requirement under section five were unconstitutional. and shelby county sought to permanently unjoin their enforce. . the district court and court of appeals rejected that challenge and held in favor of the government and the act. then the case went to the supreme court whereby a 5-4 decision the court held otherwise. the court did not hold the preclearance requirement was unconstitutional. instead it held that the section four formula for determining what is precleared is unconstitutional. the court held that continuing the prior formula for determining preclearance wasn't based on current conditions. the court said it was based on
40 year old facts having no relationship to the present day and that congress if it is to divide the states must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. it was a 5-4 decpwigs. they discussed the massive legislative record on which the renewal in 2006 was based. and writing for the defense first generation ballot access like literacy tests were dealt with now but they had been replaced by second generation barriers like racial gerrymandering, out large voting in places with sizable minority populations and things like that. e voting rights act had been effective in thrarting such
actions in the past. in a separate opinion justice thomas who jd manualty called for the court to strike down section five, the preclearance requirement itself saying the majority opinion had left that result, had made that result inevitable. that was all unstated conclusion. the supreme court upheld the preclearance requirement in earlier cases but -- so the outcome is that although the procedure for preclearance has survived, the jurisdictions are no longer covered. it's an empty set. they are -- no covered jurisdiction to apply the preclearance requirement to. states such aztecs techs and have reacted by enacting or putting into effect
laws that tecked under preclearance not have gone forward with. and although the bill authorizing the 2006 renewal of passed g rights act overwhelmingly, it's generally thought the current congress won't pass legislation anytime soon. you may have noticed the current congress has trouble legislating. so while we wait the federal government is using other tools, other sections of the voting rights act to try to protect minority access to the ballot. section two which is the after the fact which allows an dividual to after the fact challenge having a discriminatory effect.
that was not challenged in the case so the government has sued texas under section two to challenge a voter i.d. law that would otherwise have gone through preclearance. it's also filed a suit seeking an order from a federal court that would bring texas within the preclearance requirement based on evidence of intentional voting discrimination. because although there are no covered jurisdictions under the section four formula, there say procedure in the act for a federal court to determine that a jurisdiction should be subject to preclearance because of evidence of intentional discrimination. so the government is trying both those tact i cans in specific cases. and while the ability to challenge specific new laws remains, the decision is still extremely significant because section five as the court
explained in an earlier case, is in some ways more effective than case by case litigation. the court said in 1966 that case by case litigation was inadequate to combat wide spreed and persistent discrimination in voting because the time and energy required to over come the tact i cans encountered in these lawsuits. and though the tact i cans have changed it's more time consuming andless efficient for the government to be looking at each change after the fact rather than clearing it in advance before discrimination has occurred. i think i've tried to describe this fairly objectively. but i'll confess that i agree with the decent that it was a decision that is egriegeyouse in the way that it override
congress's decision based on a really massive legislative record and puts egriegeous barrier on the government's ability to prevent discriminatory. maybe i can draw a couple of par lells to the gay marriage cases and draw one back to the affirmative action case. in the same sex marriage case the supreme court strikes down section three of the defensive marriage act. that was a statute passed by overwhelming majority. and in the same week it struck down section four of the voting rights act. and in both cases dedefenders claim bitterly it is outrageous
for the majority to override wide image tiss of the congress. and the two image tiss are almost exactly the opposite. justice kennedy is the person shared in the image tiss. and it is really interesting how if you believe there say constitutional violation then you think it's important to strike down a laufment and if you don't you think it's an outrageous over reaching by the court. there is no way of saying who is right or wrong in that. the second parallel is you don't know exactly how to read the windsor decision and that is do you read it as a decision oward same sex marriage or instead could you read it as a green light to states to make a judgment about how it is they want to have marriage in their states? so too the voting rights act case.
you can look and say what the supreme court was saying you come be w an updated list taylored to discrimination oing on today or you can't impose on the states the burden of free clearance and they are just going to wink and nod because they know that congress will never come up with a new list. so we have to wait for the next generation of cases to figure it out. so the parallel i would draw is between two cases related to the voting right act. there was a case about four years everybody thought the supreme court was going to strike down section five and they didn't. they had a shot across the bow, congress came along and did it this term. something similar may happen with respect to affirmative action. so this term the supreme court tackled whether university of texas admission program which has a preference on the basis of race is constitutional.
now there was a pair of opinions that were decided when justice oh conner was on the court and she was the center seat. she's been replaced by a considerably more conserve titch. justice oh conner assenter right conservative. but you e never knew in an affirmative action case where she would come down. and the supreme court upheld the university of michigan law school and struck down the undergraduate program. but the bottom line of the decision that was you could have some form of racial preference. and the university of texas took from that a green light to add a preference to its own admissions program. there were two parts to how the university of texas was admitting students. when it comes to diversity. part someone they took the top 10% of all graduating high school students in the state
and admitted them to the system. that produced a fair amount of diversity because a lot of hools are in areas of the state that have huge minority populations. so the top 10% of the class might be hispanic for example. but then texas added on a preference system and that preference system was challenged by abigail fisher who did not get into the university of fisher and she believed she was not given an equal opportunity to compete for a seat there because she was white. and that case went to the supreme court. and everybody i think pretty much thought that u.t.'s program was in big trouble. because we have one really important -- we have a recurring phenomenon in the supreme court that happened as a consequence of justice oh conner owes requirement. there was a variety of areas she was in the majority but in
deseptember. now the court has taken a step to the right on these points of law, justice kennedy's decenting view has tended as a matter of law or practice to become the prevailing view as he has take on the center seat. and in the affirmative action cases from the university of michigan, the predecessor ones where the law school upheld justice kennedy was strongly of the view the programs deserved more constitutional scrutiny. and justice kennedy has refused to say that the constitution is color blind and out laws all racial preferences. he has said they deserves significant scrutiny. so this came to the supreme court and people believed this would be the court's opportunity to step back from that michigan case. but like in that first voting rights case where we expected
section five of the voting rights act to be struck down, instead the court did something more modest. it's a little bit of a puzzle what they were doing, what they meant to do and why they did it. they issued a decision to the court of appeals which upheld the program we'd like to you try again. that's a very interesting instruction when it isn't backed up by much in the way of explanation. so what the court did do was it said two significant things. number one, it said we're going to continue to assume that diversity in higher education is a compelling government interest. remember don's explanation of how the 14th amendment works and that is you subject these laws to heightnd scrutiny. you have to have good reason and the law has to be taylored for that reason. and most don't believe that diversity is sufficient compelling interest to justify an affirmative action program.
but justice kennedy got them to join an opinion saying we'll assume it is. and the left of the court was willing to join that opinion as well. and then the second part of the opinion said we want the court of appeals don't defer universities when they tell you they need these programs. have you to develop an actual record in court to establish that these programs are really necessary. and again, it's a parallel to what happened in the voting rights act. the supreme court managety looked at the record that congress had compiled like the universities were compiling, and said that's not good enough. but we have in these follow on cases courts determining whether or not a state has a history of discrimination so a harsh remedy like preclearance is required. tapped supreme court said to the courts you need to strictly scrutinize these affirmative action programs. and as a result the opinion for
the court end up having eight members in it, both the left and right in what was a great surprise because it was expected to be a 5-4 decision cutting back on affirmative action substantially. so the question is is this term's fisher decision which didn't seem to do much to affirmative action s that a prelude to something much stronger like that first voting rights case which also had a justice majority was a prelude this term striking down the voting rights act. so perhaps the most jaundice view of why the court did what it did really if five members of the court signaled their grave concern, why didn't they actually take the step of doing something because they haven't hesitated to be aimpressive on these important principles of
constitutional laufment and i think one thing that may have been happening was they were going to have to hand down the voting rights decision at the same time of the voting rights decision. and the combination of validating the voting rights act and invalidating affirmative action or cutting it back optically would have looked very tough for that majority of the supreme court. so it may have decided in addition i'm sure they thought it was the right answer. but they may have thought the pacing of the decision was better to kind of leave it for another day because they also were under taking for next term a fair housing act case that had significant under tones as well. before we turn to the follow any further thoughts? >> i want to say that it's right on justice kennedy and he
alone among the conservatives on the court has agreed that diversity on campus is a compelling government interest. the government has a tremendous interest in promoting it. if the other half of this 14th amendment analysis where he parts from the liberals and that is to add more supreme court jargon what they call is the program narly taylored to achieve that end. that is where justice kennedy departed from the liberal members of the court. he accepts the idea that diversity is a compelling interest but he is much less willing to give government entities leeway to decide what they can do and what classification of individuals is accept to believe achieve it. so what that decision in the texas case does, it requires essentially a trial to put the university of texas on trial to defend that the way that it
gets the diversity the supreme court says is this worthwhile objective does so to cause least harm to people who are not beneficiaries of the program. hat is where he splits the baby. >> this is also an affirmative action case but comes from the other end of the spectrum because it is an attack on a state measure that banned affirmative action. some people were present at various historical events. i was present at the affirmative action movement because when i was in law school, i was the student member on the board of riegents for the are university of california or appointed shortly ere after and you see it
eliminated consideration of race and ethnicity in their admission procedures. and he followed up with proposition 209 which abollished racial preferences across the board for state programs including college admissions. and he went on to rep pli kate that measure in several other states and one of them was michigan. nd that is where this case comes to us from the 60 circuit court of appeals which includes michigan. now michigan we heard of before in the affirmative action context because in 2003 there were a pair of cases where justice oh conner said that you can't have a strict numb cal advantage for minority students, you can't give them 50 points on the score to get into school.
but you can as a part of a holistic not very clearly defined but assort of holistic measure of an applicants worth take their race into account perhaps for the next 25 years. that was the time limit she suggested might be appropriate to keep explicitly taking race into consideration. that was not a binding part of he decision but it was cited as the court's benchmark. after those decisions came down in 2003 michigan voters act lingting with the help of ward connerly who sent proposition 209 crone to the state decided they didn't want to wait 25 and they passed proposal two which abollished consideration of
race in any school programs including higher education admissions. and the number of groups including one called the coalition to defend affirmative action by any means necessary filed suit to challenge proposal two in michigan. the same group or a related group also challenged group 209 in california arguing that essentially by preventing any state agency from adopting an affirmative action program, minorities mp being disadvantaged that they alone re being singled out to be disempower, be unable to seek a kind of program they wanted while other groups that might be different preferences and one cite sd children of alumni or athletes who may get preference are not barred from
getting a preference. they can go and try and persuade the university or the university can on their own give them a preference. >> they rejected that argument and upheld proposition 209. at argument is did prevail the circuit of appeals. i think it was a 7-6 opinion found this proposal two in michigan violated the united states constitution equal protection cause as it has been interpreted by the court. and they looked to a pair of decisions principlely for the authority for its ruling from one 1969 and one from 1982 in which the supreme court had struck down local or state ordinances that made it especially hard to pass anti-discrimination laws. there had been certain measure that is said city council can pass any law it wants but if it wants to pass one banning
discrimination in housing it needs a majority. they went out of their way to deprive minority groups that might benefit from an ordinance the ability to get them enacted. the 60 circuit court used that same reason and said this is the same thing, any other type of person, an alumni child or athlete has in m ways to try and get a premps from the university of michigan or michigan state or other state colleges. they can ask the board of trustees. they can ask the admissions office. they can go to the legislature or seek a constitutional amendment. but minority groups, the only way they can get a preference enacted is to teamed state's constitution and that violates this by depriving them of the
same way to influence state policy that other groups have. when that case -- so the case is not one that i -- it deals with affirmative action and whether a state can abollish affirmative action on a statewide basis. it's interesting in a number of ways because it says that a measure that on its face is completely race neutral. it says no one should receive any preference or debt triment based on race is unconstitutional because it prohibits some people from seeking a preference based on race. and again, as allison said, we can't ever be sure what the supreme court is going to do but it seems that the opponents of propolesle two, in other rds the coalition of
affirmative action has an uphill climb to persuade this court to enact a state constitutional amendment that says nobody can be treated different based on race. and that we argued on october 5 at 1:00 if you are free. >> one thing that is noteworthy about this is the way in which the supreme court did tackle a similar issue in earlier generations. and we think of there being a lot of stability in the american law and supreme court decisions because of the value of press sent dent. but on these really hard questions like affirmative action, race, each new successful supreme court majority feels some flexibility to correct the errors of its predecessors. and so too with the majority view of the grapt case, the
decisions up holding the ability to have some form of preference. and so too on these questions of whether local bans on affirmative action type programs are unconstitutional. so let's continue with our forward march through the upcoming cases. that being the first one we talked about. in the next 45 minutes we are going to go through nine cases. so we are going to stick to five minutes a case. which i think will be no problem at all. given that we only took 20 minutes a case for the first five. o this very simple and easy to understand recess appoint. . >> this say case called national labor relations bomplt it's a case about how they allocate power between the president and the senate. and article two of the constitution gives the president the power to appoint
federal officers subject to the advice and consent of the senate. there is another provision i'm going to read you and listen carefully because the language going to matter. >> the president shall have power to fill up all vacancy that is may happen during the recess of the senate by granting the commissions which shall expire at the end of the next session. so if the senate is in recess, the constitution gives the president the authority to make appointments that he would otherwise need the senate's advice and consent to make. and what this case is about is the meaning of that clause. now here is what happened to give rise to the case. the national labor relations board enforces federal labor law. it's a five member board and you need at least three members
to have a quorum so the board can operate. there have been vacancies on the board for some time. been two of them but they had three but the term of one of the three was getting ready to expire and then they would have only had two and couldn't operate. president nominated two people to fill the vacancies in the board, the two vacancies. the senate did not confirm their nominations so the board was in this position where it was about to go out of business. in december of 2011 the senate decided that it was going to take a break from mid december until january 23rd. but they didn't just declare they were going to go out an a recess, instead they provided that they would have a proforma session every three days during that period in which one member
of the senate would be there and would call the senate into session and in 30 seconds or less bring down the gavel and call the senate out of session. and the resolution that set this up provided that members of the senate didn't need to be there for these sessions and that no business would be transacted. why did the senate do this? they did it because by accepted practice a break of that short of time of three days doesn't count as a recess that triggers the president's power to make recess appointments. so this happens at the end of 2011. the president decides that actually the senate is in recess despite these proforma sessions because those sessions don't make the senate available to provide advice and consent which is what it has the obligation to do and if they are not around then the president says they are in
recess. since this recess is long enough and there won't be a quorum unless i get people on there. so he appoints two people. so the board with these two recess appoint tees on it renders a bunch of decision. in one decision it's enforcing labor laws against the company brings a challenge in court and says this was an action that was without authority because the board actually lacked a quorum because the people who were sitting on the board who voted to enforce the law against me were unconstitutionally appointed. and that's how the case shaped up. and it was in the court of appeals here in the district of columbia. and there was a big fight between the board and the united states government representing the board arguing these were valid recess appointments because the senate really was in recess despite
the proforma sessions. and the company said the proforma sessions count. and everyone anticipated there would be a decision by the d.c. circuit on the question of whether this proformas are enough of a session to present the conclusion that there is a recess that allow it is president to make these appointments. the decision comes out and the court goes way dwhrooned question. in fact, doesn't even address that question. it addresses two much more fundamental questions about the scope of this power that has been around since the beginning of the republic. and the first is what does the recess mean. remember i said vacancies that may happen during the recess. the court said the recess that's phrased in the singular so must apply to only one recess and if there is only one
it can apply to, it must be the recess between the sessions of congress. the recess between the first session and second session. you know congress is broken into one-year sessions. it must be the intersession recesses. you know when congress takes august off and goes on recess that is not middle of the year. it has to be a intersession recess and these appointments came in january after congress reconvened on january 3. it was within the new session and therefore wasn't an intersession recess and therefore it wasn't the recess and therefore it was invalid for that reason. but that's not the only problem the court said. the other problem the court said was the constitution says the president can fill up all vacancy that is may happen
during the recess. so that means that the vacancy has to arise during the recess. the vacancy cannot exist before the recess. if it did it didn't happen during the recess. and therefore there are two fundamental problems with these appointments. so by virtue of that decision the d.c. circuit took what was already a quite important question of the separation of powers and the proper allocation of authority between the senate of the united states and turned it to a huge question about the separation of powers between the senate and the united states. and part of the reason for that is that if one goes back through american history as one will see in the brief we file tomorrow in this case, there are hundreds and hundreds and hundreds of recess appointments that were either intrasession, in other words not during the break at the end of a session or to fill vacancy that is arose before the senate went
into recess. and including just to highlight isenwer as commander tment of of the european forces in the summer of 1943. but there were hundreds and hundreds of them. so it's going to be an interesting case. you could tell from the language i read, there is obviously an argument to be made that supports what the court of appeals d. of course, the language i think is capable of being read to support the historical practice with respect to interand intrasession and when the vacancies arise. and then you have this quite historical practice and there is something interesting about that which is it accelerated over time. you can see examples going back to george washington of appointments that wouldn't qualify under the court of appeals ruling. but as time has gone on there have been more of them.
how do you get the history, how do you interpret the language. so i think it's going to be an interesting case to follow. >> one tiny little point. >> let me make one point. >> a lot or most of the work done on the question of intrasession and when the recess has to occur was actually done by democrats including me, i represented senator kennedy challenging recess judicial appointments of president bush. and we hp to get a lot of republican judges all of which rejecting our arguments and all the arguments have been reversed and the same arguments are being used against president obama. >> i wonder if you have an opinion or if your brief addresses if the court agrees with the d.c. circuit then what
is the effect ongoing backwards? i think one of the appointments challenged by senator kennedy was a judge sitting on the 11th circuit so would the 2-1 decision where he was in the majority now be questioned? obviously the answer -- > the answer is that's actually not an issue that the case presents so it's not an issue we'll get tofment if the court rules that way then it will have to be confronted but i don't think it will be wrestled with in this case. >> the treaty power. >> the next case asks what the limits are on congress's power to implement treaties. some are self-executing and others require the congress after the senate has approved a treaty requires congress to pass a statute to implement its
provision. most courts have read a case from 1920 to hold that in a statute is imp mepting a valid treaty then this statute is necessarily valid. bomb versus united states concerns a statute that imp ments the 1993 convention on the prohibition of the development production stock piling and use of chemical weapons and on their destruction. it's a treaty concerned with terrorists and rogue states. the case also concerns the meaning of this 1920 case missouri versus holland and depending on the court's reading may be oot one of the instances where this court overrules a prior decision. these come plegs constitutional legal issues arose from a domestic dispute. carroll found out that her best friend was pregnant and her
husband it was father. she slipped -- >> you're not supposed to do that, right? >> she decided to make her friend's life a living hell and she was a micro biologist and so naturally she decided to do this using some chemicals. she took some from her place of work and she ordered some on amazon that is used in a dark room. and she put the chemicals on the friend's car and doorknob and mailbox and took mail from her friend's mailbox. and she wasn't really a friend at this point. >> more an aquantens. suffered a iend minor rash. apparently these chemicals were
bright orange and easy to see and wipe off but her friend got a rash on her thumb. and she intended to cause irritation and discomfort but she did not intend serious harm. the friend enlisted the -- she asked local police. they didn't know what to do. the mail was being taken so she asked the post office to set up surveillance and found out carroll bond was behind this. at this point you might expect the local police to take over but instead federal prosecutors got involved. i assume that's because the post office thing. so mrs. bond did not engage in activity in violation of the chemical weapons treaty. her actions didn't involve chemical warfare or stock piling of chemical weapons. but the prosecutors charged her
with using unconventional weapons in violation of the statute that congress passed to implement the treaty. so she moved to dismiss. she argued as applied to her onduct the statute exceeds congress's constitutional powers in article 1, section 8 and reserved pow ers to the state in the 10th amendment. he called it a massive and unjustified expansion of law enforce. . the court of appeals rejected her argument and said that the missouri versus holland, the 1920 case means that if congress implemented a statute to enact a valid treaty then it was acting within its authority. so before the supreme court she reit rates the argument that the statute is unconstitutional
fits applied to such a local crime. she argue that is the power to enact a statute to implement a treaty can't bring wit the power to enact a law with disregard to other constitutional limitations. and because she says the government could not have a federal law that criminalized her conduct in the absence of the treaty, the federal government can't criminalize her conduct under a statute implementing the treaty. she argue it is statute can be read not to cover her crime at all and if the supreme court read it that way it would have to reach the constitutional issue. the government counters her conduct falls under the scope of the statute. that the statute is constitutional because it is necessarily constitutional even if it covers some local subject matters that it wouldn't
otherwise address because otherwise the government says the u.s. would be hand strung in negotiating treaties and the confidence of other countries in the united states is a global partner would be undermind. >> a red line, if you will. >> no comment. >> the government also makes an argument now that it didn't make at the trial level, it did make in the court of appeals which said thatted the been waived. the argument is this provision statute is valid under congress's commerce clause power, that is the power to enact law that is regulate the flow of goods among the states and chemicals are sold in interstate commerce like these these aren't -- illegal weapons so they are old legally in states.
on bomb side this argument wasn't addressed in its opening brief because i said the position is it's been waived. so i gave a bear bone description of the facts but the government portrays the case differently. they claim the two chemicals used have rare ability to cause harm to individuals and that one half of a teaspoon of one of them could be lethal while a few ingested krisles could kill a child. they say she attempted to poison the friend 24 times over the course of several months, spread the substance on the mailbox and car and door of her home in sufficient quantities to be lethal. so do these additional the bond explains that she was
under incredible stress. her hair was falling out at news of the affair had a devastating effect on her physical and mental health. it was completely out of character for her. do these facts affect the answer to the constitutional question? probably not, but the briefs like all good briefs a tray the fact that is most sympathetic to her client even if the facts do -- do not directly directly answer the legal question. there were 18 amicus three styles in the case. in terms of the implications of the case, a lot of treaties that we enter into, there would be some other power that would allow congress to implement them. someact that there were
treaties that affected domestic violence, it would have to come from the treaty? i will talk about a case involving the clean air act because it will keep us on time and because otherwise it would be impossibly complicated. there are two cases at the --rey in court had taken up that the supreme court had taken up. it involves downstream air pollution. the ideamiliar with that there are states, particularly in the midwest, where there is heavy industrialization. coal-fired power plants, industrial plants and the like. admission from those plants can travel within those dates and two other states as well. the clean air act addresses that. the epa, implementing the statute, went about trying to figure out how to regulate the
emissions that go from one state to another. of why a classic example you need a federal law. is put a series of restrictions on these upwind states on the amount of pollution that could leave that state and would end up in another state. challenges to of those regulations issued by the epa. there are three distinct questions, but in general it deals with the question of whether the epa can set the rules or if the states themselves can set the rules. technicalalso questions of whether these claims were brought in time. there is one other feature of this case and that is you will have heard about the kerfuffle about whether we will appoint new judges to the d c circuit.
there's also the notion that the d c circuit is the second most important court in the country. a lot of these hugely consequential cases involving the federal government are brought in that court. take the epa case and you can see why it is that there are such political struggles over the appointments to that court. let's turn to fair housing. >> very well. followed an earlier season of the supreme court, you know there was an exciting episode that took place in burlington county, new jersey. tom was involved in arguing that involving the strip search of a prisoner in burlington county. this is a different type of issue coming from the same location. an urban renewal
type of program. the count of mount holly wanted to bulldoze a neighborhood called the mount holly gardens .nd build new housing there they feel the area is blighted, there is a lot of crime there and they wanted, in the town's view, to improve. not holly gardens neighborhood is also the one part of town which is a minority neighborhood , and under federal fair housing laws one cannot discriminate against people based on race. the question is how do you determine when the protections of those fair housing laws go into effect. holly and the residents of that neighborhood sued to stop this redevelopment project from
going forward. they argued that it violated fair housing laws because the people who were bearing the weret of this development disproportionately minorities. the fair way that housing law and other antidiscrimination laws have developed over the decades, there are different ways you can try to see whether or not there protections are triggered. in american point history it stopped being fashionable to say we dislike discrimination. we are going to adopt rules that discriminate against people of color and so forth. it used to be the kind of thing that helps politicians win elections. since people who make these kinds of decisions are no longer outwardly declaring that is what they want to do, how do you find out if that is what is really going on?
the doctrine that courts and some agencies have developed is known as disparate impact. if the policy that the agency is undertaking has a disparate impact on a protected class of people, often minority groups, then it may be illegal for them to proceed. the way that this works in is that the agency was case aomething, in this redevelopment of the neighborhood, residents sue and they say it is a violation of fair housing and that it has a disparate impact on us, we are minorities and we are getting shafted again. if they can demonstrate there is a disparate impact, it doesn't mean that the project cannot go forward, it means that the city in this case has to show that what it wants to do is a legitimate goal similar to those
legitimate interests we talked about in the affirmative action contest earlier, and it has to show that there is not a way to get to the same result without having a similar kind of impact on this protected group. that is also similar to this concept we with the narrow tailoring of remedies. once the city raises that defense and says this is why we have to do it this way, there is no way to get to the same legitimate goal without having it, then the burden shifts back to the other side, in this case the residence, and they have to say you are wrong, city. there are other ways that you can get to where you want to go without all those in our houses. without bulldozing our houses. this disparate impact type of process, hitting the ball from
one side to the other, has to be examined by the trial court the for the city can go ahead with this project. the city has appealed to the supreme court and they are third circuithis court of appeals and others have gotten it wrong. this does not have to be a disparate impact analysis before we can go forward with this project. sure, we can't have intentional discrimination, we are not trying to target people, but this type of burden that you are placing on us is not required by the federal housing law or by the constitution. you can't make us go through these hoops before we can complete the redevelopment of this neighborhood. the court is going to look at that and it will have a lot of implications, not only for housing law, but for other areas of antidiscrimination law, possibly including employment
discrimination. the same type of test arises when you have employment is coronation lawsuit here it is very hard to prove that someone is intentionally discriminating, so the jargon of disparate impact is the way to smoke out impermissible discriminatory actions. depending on what the court doesn't that could have implications beyond housing and into employment and other areas of public wallace e. policy.blic organizations have been gravely concerned about cases getting to court. in this context and in other contexts they have worked very hard to get the cases to go away. even after the supreme court agrees to hear a case, it can be settled or withdrawn up to the day that they actually decide the case. case was a private sector that i actually represented with
the possible involvement of the federal government which became somewhat controversial. that case became settled after the court agreed to hear it. there is a fair amount of reporting that would suggest there's a lot of rusher on the parties to settle before the justices can decided, as well. >> a settlement in this case would probably mean higher payouts to the residents who are being forced to move for the redevelopment. >>@cases called mccutchen versus federal election commission. as in citizens united, the petitioners in mccutchen are aging the court to overrule prior decision in the area of campaign finance. are clear versus valeo, the 1976 decision in
which court upheld congress is a -- congress is authority vention. todayumcisin the aggregate limit is about 100 $25,000 on contributions to individuals. during an election cycle. there is a $74,600 limit. the individual petition in the case is sean mccutchen. man who gave a lot of money to individual parties during the last election cycle but he wanted to give
more. had he given more he would have exceeded the limits. he challenged the federal arguing campaign act, along with a copetitioner of the republican national committee that the aggregate limits violate their first amendment rights and should be eliminated because the resulting contributions won't be large enough to cause any concern. that is the issue before court, whether the aggregate limits, not the individual limits, but the aggregate limits violate the first amendment right. the concern is that the elimination of the cap would allow candidates and party officials to solicit and accept very large donations to be shared among the major parties various candidates and committees. the supreme court has repeatedly held that limits on large donations create important against corruption,
specifically the exchange of political favors for campaign contributions. in the area of campaign finance, some members of the court disagreed open a that that precedent -- openly with that precedent. usthe prior cases may tell what the outcome should be. part of the dispute in the case is a distinction over campaign expenditures. case buckley held at the limits on expenditures were unconstitutional because that was a direct infringement on the first amendment right of the subjecte to speak and to the highest level of first amendment scrutiny and that the expenditure limits could not survive that scrutiny. the contribution support said we
are more like an association, subject to a lower level of scrutiny and the contributions and aggregate limits survived the first amendment challenge because they prevented corruption. in mccutchen the petitioners are asking the court to narrow if not overturn this aspect of buckley in the matter of the distinction between contributions. they say the distinction is that their case is about aggregate limits and not the in digital contribution limits that apply to any specific candidate, the amount that you can give to anyone candidate. he distinction they draw is pretty fuzzy, so if they succeed in that aspect of the case that would likely pose a significant
to the limits on individualns candidates. we would promptly -- probably see some litigation in that area. the petitioners on mr. mccutchen argue that they can win even under buckley just because the aggregate limits today, given other restrictions in campaign- finance law are such that these particular limits are not needed to prevent corruption. the possibilities are that buckley will be limited and at least some contribution limits will be subject to scrutiny. buckley will not be limited but the court will hold that these particular limits don't protect against the government interest in protecting against corruption. not be reaffirmed
and the court will also hold that the limits protect against corruption. i don't think that justice kennedy is a swing vote. and hasry well defined long-standing views about campaign-finance. if the law is to survive, i think that we are probably looking at justice roberts, whichever side wins it will he thinksn on whether that the limits are actually needed to protect against corruption. >> fantastic. to the otherrn part of the first amendment and religion? >> greece is the word. he word. it deals
with one of the fuzzy parts of the constitution and that is the role of religion and its relationship to government. the constitution makes no reference to god at all. it has a reference to religion in the first amendment in which the congress, and by extension other branches of government, may make no law respecting the establishment of religion, nor can they make a law preventing the exercise of religious faith as well. so even though the constitution itself does not talk about todd and there are these apparent clauses referring to neutrality or some kind of arm's-length relationship to train religion thegovernment, we know that continental congress and the u.s. congress and many bodies of government began their sessions with invocations and prayers and that prayers and references to god were made by political officials from the beginning of
the country through the present day. it is unclear where exactly the line is and the supreme court has struggled for many years to clarify that boundary. this case is one of those efforts by the court to clarify the boundary between church and state. the town of greece has a practice of beginning the sessions of the town board with a moment of silence. perhaps some people wish it were , but slightly over a decade ago they changed their practice and decided to have , to invitecation clergyman to come and say a prayer before the town board deliberations.ty the town changed the practice of how exactly it would choose, who would be invited, but eventually they came up with the situation
in which some in the town clerk's office would go through the phone book and call up the different churches in town and invite them to send someone to come and give an invocation before the board meeting. religiousnly called institutions that were located inside the town and inside the town limits, virtually all the religious institutions were christian. there were churches. it couple of synagogues were outside the town limits. tim may have been a buddhist temple inside the town limits as well, but anyways as a result virtually all the faith leaders who gave the invocation were christian and many of the prayers that they gave made very explicit references to jesus worm more savior and than the generic types of layers that are perhaps less sectarian.
to residents of greece who the board's meetings regularly found this practice of prayers objectionable and they filed suit under the clause of the first amendment saying that the town of greece had gone too far in establishing a religion. the second circuit court of appeals agreed with them by the town examining how went around selecting people to give the invocation and what exactly was being said in these prayers. it said that while there was not that was white line crossed by the town, if you look at the totality of the and you see that almost all the prayers are given by christian clergy and that many of the prayers are very explicit references to jesus
than to our savior and so on, and you look at that no effort was made to bring in o onthat may be located quite close physically but just , thate the town limits totality of circumstances went too far under a 1983 supreme court decision which looked at legislative prayer and said that legislative prayer is ok if it does not involve proselytizing and does not disparage other religions as does not serve to advanced on one religion over others. the court examined whether what greece is doing within those limits. a couple of observations. one is that there is an interesting anomaly in the general way the supreme court has looked at these establishment of religion cases.
serious thehe less religious expression is, the more permissible it is under the constitution because the less it looks like real serious religion and instead is more decorative -- i mean it. agency thatnment defends what they're doing tense assay is not really serious it is more of a cultural traditional thing, we don't really mean it. because if we mean it and we are taking a stand on which religion is right and that would be less likely to pass constitutional muster. the other thing worth noting is that where the obama administration are on this, they sided with the town of greece saying that what greece is doing is ok because they take the view that the courts should not get into examining the content of every prayer and making a list
of how many are this religion and that. that is too intrusive and there should be more breathing space for the town to decide what is at an appropriate form of invocation. some have said that the obama administration is hostile to religion. in this case and those argued a couple of years ago, they have taken a position that is very side,n the pro-religion even more dramatically a couple years ago the administration asked the supreme court to reverse precedents and make it easier for religious schools to subsidies ined arizona. so at least for those covering the supreme court, they don't not to have -- they have always sided against religious institutions or program ages advocates that the supreme court's. >> tremendous. we have three more cases to turn
to before we get to your questions. in about 10 minutes. i am going to talk about the minor trivial subject of abortion. [laughter] it is an area of the law that fits the bill -- it's a situation. the first one is about abortion protest. it is a first amendment free- speech case. this is about protesters at facilities and medical health clinics that offer medical or surgical abortion. you have to step back to the previous precedent which was called hill versus colorado with justice kennedy in dissent, the court upheld an eight foot floating buffer zone. this phrase meant that you can't approach the person within a certain number of feet. in that case, with respect to any health facility, a person
who is approaching, and if you want to say something to them, you have to stay eight feet away. the supreme court said that was a neutral way of preventing interference with the access to health services. -- this casea comes from massachusetts. -- it istatute that is a 35 foot non-floating buffer zone. within 35 feet of the entrance --the facility, you have to you cannot approach them to have a conversation or show them something, you have to let them proceed and from that substantial distance they may unimpeded into that facility. the supreme court has agreed to review the case. it will present a test of the expressive right of people who
want to do abortion counseling or protesting to approach a woman who is going to one of these facilities and offer her literature or show gruesome images. there can be all kinds of protest involved. whether those free-speech rights are unduly infringed by making someone stand so far away that they have to shout or use massive posters. the court of appeals suggested it was possible they could dress as the grim reaper to get noticed and read other things you could do in the context of offer zone. you have a situation in which justice kennedy previously felt for a strongly that these restrictions unduly impinged on the rights of free speech. hillat previous case, versus colorado, chief justice rehnquist who is no longer with .he court has left the court now it is possible that justice kennedy will have a majority to narrow the hill versus colorado decision.
the second case related to abortion issues is called klein and is a medically induced abortion case. it is on the docket but not at the docket on the same time. asked to review and oklahoma statute that may prohibit the use of are you-486 486. what the statute may do is that it may say you may have to follow fda guidelines on the use of the drugs. or it may invoke the guidelines in a certain way that the drug never could be used for medically induced abortion. interestingly there was an uncertainty about what the law does. the supreme court invoked a rare casedure where it sent the to the oklahoma court to ask
what this law does. if the supreme court concludes that the statute actually does prohibit the use of the drug for medically induced abortion, then the supreme court could take it up and it could present the first real look at roe versus wade since the so-called partial birth abortion cases. could -- that cases on hold until we hear back from the state court of appeals. a follow-on to the affordable care act case may be coming to the supreme court. >> let me give you a quick forecast on that. this is not an issue on the courts docket yet but we think it is likely that it will be soon and will be decided this term. , this ise things another aca issue, most people
get their health insurance through their employers. one of the things that the aca does is regulate the terms of those plans. to ensure that the plans cover appropriate coverage. one of the things that employer- based health plans have got to provide is contraceptive coverage, coverage for contraception. hhs regulations also give religious employers exemption from that, for example if you are a church employer or a church school employer you have exemption from it. they don't give anybody the ability to opt out. a number of employers around the country who are not religious- based employers in the sense that they are not churches or church schools, they are regular corporations organized under state law, have argued that they
ought to be themselves able to be exempt from this requirement because their religious scruples of the owners of the company are such that they believe that their religious beliefs would be violated if they were required to provide contraceptive coverage as part of their health insurance. they makepal argument is under a statute called the religious freedom restoration somehich congress passed years ago based on its view that the supreme court was not interpreting the free exercise clause of the first amendment in a robust enough way to give people protection when they had religious objections to being subjected to the requirements of a general law like the affordable care act law. this is another one where you have to listen carefully to the words, this time of the statute, which says the government shall
not substantially burden a person's exercise of religion unless the government has a compelling interest and the burden imposed is the least restrict it means of achieving that interest rate the courts of appeals have been wrestling with this. some will come out and say yes, actually under the provisions, any corporation should be entitled to an exemption from the of coverage requirements. others have come to the opposite conclusion. the case presented a number of interesting issues. -- one isorporation if a corporation is a person that can exercise religion. another is if they contraceptive coverage requirement is a substantial burden. is a burden on the employer or is it really taking something away from the employees who might not share the religious belief of the employer? then, does the government have a
compelling interest in imposing that obligation. that is something to look out for. it is very likely that a case will pop up and be on the courts docket sometime in the next few months. >> we have finished, to get ready for your questions, precisely when we promised. [laughter] no [applause] your side of the bargain is that we get to hear you're fantastic >> i was going to suggest that in the interest of everyone being able to hear we have two microphones on either side. so if you wouldn't mind lining up at the microphones, if you have a question it will make it easier for everyone to hear. >> yes, sir.
does the fact of working together, working and playing well together with other justices result in decisions oft may really fall short logic and consistency just to reach the magic number of five? one justice historically was famous for talking about the rule of five and that was justice brennan. i would suggest that you perhaps would answer that one. [laughter] thanks for suggesting it, jeff. roberts chief justice famously asked his confirmation hearings talk about the need for the court to provide clarity and to come together, you can look
at that and one of two ways. one, you need to have broad majorities. we talked about decisions that if theprisingly8-1. divided, wet is used to say that the chief justice delivered the decision for the plurality of the court. it would be very difficult for people who are trying to apply the court's decisions to know what the rules are. i do think in any collective body, including the supreme court, there are compromises made in order to have some kind of rule that people can follow. to thinku don't have about that as being politicizing. they do have different judicial philosophies, but there is a
real imperative to come together with one rule if they can do it. that seems to me a perfectly legitimate impulse to try to accomplish as much for the country. those8-1 decisions on what could've been big cases, justice ginsburg more recently indicated she wasn't going to be drawn into that again. she was the one dissent in the affirmative action case in june. sometimes there is a compromise to get more people to sign on but there are sentences in there that set up the analysis for a future case in ways that make some people unhappy. in the voting rights case a few years ago there was one that set of an overturning incredibly important part of the case years later.
she indicated that she was not going to concur or join the opinion in the affirmative action case because she doesn't want to go in that direction. the panel has identified some interesting days coming in this term. i wonder if you can tell us about some uninteresting days. if any of us would care to go and watch the supreme court in action but would not care to be morer, when would successful with that shorter line? you should come to my cases. [laughter] >> so if you are just not going to get in line for the obamacare or abortion law or anything like
that, in the first term i will argue about whether the securities litigation uniform standards act prevents people from filing suit under state law in texas and louisiana to try and bring claims rising from the stanford ponzi scheme. remember the stanford ponzi case in which they were buying polo ponies in antigua? that is an interesting fact of the technical question of law. courtases of the supreme out of 10 present relatively ordinary questions of federal law. what happens is that we have disagreements over the contraception mandate. that is the supreme court's job to define it. there will be these conflicts in the court of appeals and the supreme court says we have to have one rule for the whole country and so they will take the case. could be a fantastically boring question and it may not even be important, but nine times out of
10 you can go and see relatively technical cases that will not have lines going out the door. i will say in favor of the , there are not many seats. there can be as few as 800 public seats on any given day. if people are coming out of town they should write to the court ahead of time to get a reserved seat, but it is tough. ofmy view and in the view most people, if you go see your supreme court in action you will be very proud of them. he will not think they are a bunch of political act is. websitean look on tom's at the list of cases they're deciding. you will be bored by a good number of those questions. those are the ones you might have a better chance at getting into. [laughter] >> thank you. be an increaseto in politicization of the court.
part of that may be media driven. it seems not because of a position, but of a clamoring to read anything instantaneously and get it on some airwaves were tweaked. beppreciate that you may not as able to answer this. i am looking for more of a historical perspective. the court today versus and its apparent politicization versus what we have seen historically. >> let me start and then the rest of the panel can get behind me. ast is portrayed sometimes politics or being politicized, but you are really seeing is the operation of different judicial philosophies at work. the courtmembers of have different judicial philosophies. they are legitimate philosophies
. they hold them quite deeply and they tend to drive them in a principled way to different answers to the same question. it is easy enough to perceive that his politics, but a lot of times to my mind that is not the right way to think about it. that is not politics is a well- thought-out philosophy of the law and the constitution and how to apply it. they just don't have the same philosophies. that generates differing results. you could say the same thing about the great battles in the supreme court in the 1930s. different members of the court had different philosophies about how you interpret the constitution and how much deference you should give to legislative bodies in what areas and it generates some contentions, some sharp differences. but that does not mean it is politics. >> i would say that in earlier periods the court was not just political in this order of the -- they how is there
were actual politicians. in the 19th century justice hughes ran for president. we had another former president, chief justice taft who was appointed to the court. would resigntices to run for governor of new york, that was john j. ina, the new deal the 60s justice fortis remain very close to resident johnson. there were periods when the courts were more involved in the actual nuts and bolts of with justices publishing op-ed articles under pseudonyms to try to influence policy. it may be one of those things where we always pine for the good old days the matter where we were. i am not certain that who however political it is now it is more political than it has
been at other periods. >> i would probably not use the ,ord political, but i do think maybe, correct me, but this hesitant tonot disregard prior supreme court , i wouldn't call that political, but they think they are wrong and they will not be deterred by what the prior court held whether that court was 10 years ago when it was the rehnquist court or 30 years ago. that is why so many of the cases aboutk at we talk today maybe they will overturn any number of cases or limit them or change them in some way. i think that seems to me -- >> the only other perspective i will give is that if you can think of the
court as being politicized from the outside. that is the country has gotten more divided, more harshly divided. the supreme court is tackling these big moment just issues i.t. constitutionality of the affordable care act. the court itself becomes a political football. the people who don't like the outcome of a given case tend to portray the majority of the case as political actors. court see study the that they are applying the law in good faith. decision, the windsor decision, a lot happens after the decision and the administration has already spoken out on tax law, spoken out on immigration, has not yet made a decision on social security. orany time frame has evolved what is considered a reasonable time frame for the government to implement? >> all i can tell you about that is the -- there are a lot of
people in the executive branch working very hard to figure out how to do it. there isn't a one-size-fits-all answer to it. each statute has different words and different requirements and can be interpreted one way and some can't. the government is working through those in as rapid a way as possible, consistent with being thorough and careful and diligent and really thinking through the legalities of it. as you can see, they are making some fairly considerable robbers in one area after another. >> i think we have time for one more. >> is it legally possible for the court to say a want to review a case they have previously decided? for example citizens united, could they get together and say look, we made assumptions, the assumptions were not right, and we review this now or do we have to wait for another case to come up so that we can review it at
that point? can you ever see them doing it? >> they have to wait for another case to come up there it >> as don described, he fight in the perry case about standing mother has to be an actual controversy. there has to be a person with a lawsuit in front of the judges. what you do see the justices doing is signaled their interest in reviewing a particular question or precedent. a justice might write a concurring opinion that says in a later case we might review case x y or z or even the majority might do that. we are aware of a whole series of precedence that the court has signaled their interest in revisiting. alice talks about buckley versus valeo. three members have cast doubt on the idea that there is a difference between expenditures and contributions. that is true across a variety of areas of the law. you have to look at the fact that when the courts membership changes you can look at the old
5-4 decisions and think that the court tries to keep decisions stable. on really move important questions. >> i want to thank our panelists who have taken [applause] they are all experts of extremely busy schedules and are passionate about the law and i am lucky to have them here with us today. thank you all for coming. for those of you who are here for the all day, i hope you have enjoyed it heard for those of you that the afternoon ticket i hope you enjoyed that as well. thank you. [applause] [captioning performed by national captioning institute]
>> he was asked about correction by his agency by sean duffy in wisconsin. >> our chair now recognizes the gentleman from wisconsin, mr. duffy. >> welcome to the committee room and the hearing. i want to focus on data. we have touched on that a little today. i want to go back to the conversation and give you an opportunity to tell the committee how many americans you are collecting their financial data. >> i have tried to give this answer several different times. >> i'm looking for a number. >> that is not how the question . >> how many americans
do collect on their. >> we don't collect directly. we go to institutions and work with institutions heard >> how many institutions -- how my americans are collected through those third parties? >> we oversee approximately 110 large banks and a few credit unions with assets of $10 billion or more. is -- >>stion for you that's not the way they work is done. it is like asking me what color is this song? is not quite the same thing. >> how many actual credit cards are you collecting on americans credit card data? know, aamerica wants to
number of common in your collecting and you're giving me a lot of explanation. i want an answer of how money credit cards does this c.o.p. be collect data on? data don't collect any from individuals about their credit card accounts other than those who come to our -- we go to credit card issuers who we are required to oversee and make sure they are complying with the law. we look at their institutions and practices. >> to monitor credit card accounts? >> that is the third bucket. consumer complaints, market monitoring -- as we have indicated before, we are >> ining sample data -- senate banking, you are asked these questions and you come
today, you are prepared to give us numbers on the number of americans that have their financial transactions in data elected by the c.o.p. be. thecopb. americans deserve the transparency that you promised. >> a time belongs to the gentleman from wisconsin. >> if you're not going to give me a number i am fine with that. stonewall me. will you give me the names of the financial institutions for which you collect financial data on americans? yes or no? >> i just need to correct the premise of the question. >> will you give me the names of those banks?
>> there are 110 large institutions -- >> the claim for -- the american people don't know what the copb is doing. the nsa collects data about americans phone records. america is outraged when the federal government takes that information from me. you are here to protect consumers and you're taking this financial data that they have said it is ok for the institution to have, you are taking it and not giving them any transparency about the information you are taking or how much you're taking it or who you're taking it from. that is incredibly frustrating. what are you just level with the seattle we have asked you this question over and over again. never does america get answers.
toi understand that you want make a speech. there is no comparison between do you and the cfpb. >> have numbers for me? name the banks. do you have those numbers are those names? >> i can name a number of the banks. we are looking at credit card america,t bank of capital one, discover, american express. we are going to make sure they are complying with the law. >> the time of the gentleman has expired. kerryretary of state john and his russian counterpart surrogate lover of speak about serious chemical weapons program. later, a conversation with
no, we can't control every event. america remains the one indispensable nation in world affairs and as long as i am president i intend to keep it that way. we are ansident says what hesable nation, doesn't want americans to comp contemplate is that we don't know how to win wars. in the the best military world. we certainly spend more on our military than the rest of the world put together, but we don't know how to win wars. ought to beme there a serious national conversation as to why that is the case. where does the fault lie? is it our politicians are too stupid or our generals are inapt ? is it the size of the forces are too small or is it, and this is my believe, is it the fact that i its very nature, war is
>> dear ladies and gentlemen, thank you for such a great invitation to today's meeting. wille the mass interest of course we would like you to have an unbiased idea about what we're going to do. i think you understand well before we start to tell you what we are going to do. we should get down to a very serious work, they work which is dedicated to the principle to -- to the end of a certain
adherence ofhe surrey to the chemical weapons convention. these documents are officially tabled by damascus to the corresponding agencies and will have to have a look at the corresponding documents. they have all the qualifications and professionally -- not to postpone the process as it areines with the rules that established by the organization prohibition of chemical weapons. we proceed from the fact that the solution of the problem will make unnecessary any strike on the syrian arab republic. i'm convinced that our american colleagues as president obama are firmly convinced that
we should solve the peaceful way of the resolution of the problems in syria. prepared for this meeting, we see that the development of the advance -- develop and of the events offer additional opportunities in situationmove this from the page of military concentration and prevent any terroristic threats which is expanding in the syrian region and to convince the conference that syrians should agree on the transition bodies that will have all the executive functions. this is our common objective and i hope that today and tomorrow
will help us to move on and achieve this objective. thank you for your attention. >> thank you, foreign minister it is my privilege to be here with us delegation. i want to thank all the people who hope that diplomacy can avoid military action. we thank you for coming quickly to geneva in order to have this important conversation that we will engage in. over one year ago, president over one year ago president obama and president putin to work together to declare contingencies in chemical weapons. we have been in regular contact about this issue since my visit
earlier this shoot. this challenge obviously took on great urgency on august 21 president obama and dozens of the partners believe that that action is unacceptable and have in no uncertain terms made it clear that we cannot allow that to happen again. in light of what has happened, the world wonders and watches closely whether or not the assad